High Court of Australia
HIGH COURT OF AUSTRALIA
GORDON A-CJ,
EDELMAN, STEWARD, GLEESON AND JAGOT JJ
COOK (A PSEUDONYM) APPELLANT
AND
THE KING RESPONDENT
Cook (a pseudonym) v The King
[2024] HCA 26
Date of Hearing: 15 May 2024
Date of Judgment: 7 August 2024
S158/2023
ORDER
1. Appeal allowed in part.
2. Set aside order 3 made by the New South Wales Court of Criminal Appeal on 15 December 2022 and, in its place, order that the appeal be allowed on the basis of ground 1 and in part on the basis of ground 3.
On appeal from the Supreme Court of New South Wales
Representation
T A Game SC and J L Roy with R Khalilizadeh for the appellant (instructed by Streeton Lawyers)
S C Dowling SC with M L Millward and N A Wootton for the respondent (instructed by Director of Public Prosecutions (NSW))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Cook (a pseudonym) v The King
Criminal law – Sexual offences – Appeal against conviction – Admissibility of evidence – Where appellant convicted of sexual offences against child complainant – Where complainant previously sexually assaulted by another person – Where complainant allegedly disclosed previous sexual assaults in detail to appellant – Where appellant sought to call evidence and cross-examine complainant regarding previous sexual assaults – Where s 293(3) of Criminal Procedure Act 1986 (NSW) prohibits admission of evidence of complainant's sexual experience or sexual activity – Whether evidence admissible under exception to s 293(3) contained in s 293(4)(a) or (b) – Whether evidence formed part of connected set of circumstances in which alleged offending by appellant occurred – Whether evidence related to relationship between appellant and complainant – Whether jury misled by description of previous sexual assaults as "physical assaults" – Whether acquittal of appellant required to avoid new trial that would be unfair to appellant because such evidence inadmissible.
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