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11
Court of Criminal Appeal 7 July 1999

R v Young

[1999] NSWCCA 166

Also reported as (1999) 46 NSWLR 681
Sexual offences
CRIMINAL LAW AND PROCEDURE EVIDENCE ACT PT3.10 DIV1B SEXUAL ASSAULT COMMUNICATIONS PRIVILEGE INTERPRETATION OF STATUTES PUBLIC INTEREST IMMUNITY.

Citation: R v Young [1999] NSWCCA 166
Court: NSW Court of Criminal Appeal
Date: 7 July 1999
Judges: Spigelman CJ, Beazley JA, Abadee J, James J, Barr J

Background

The appellant was charged in the District Court with sexual assault and indecent assault. In preparing his defence, he issued subpoenas to Tamworth Base Hospital, a sexual assault service attached to that hospital, and a psychiatrist, seeking patient notes, records and files relating to the complainant.

The complainant had disclosed a history of depression, prior psychiatric admission, previous sexual abuse, and had also withdrawn a prior sexual assault allegation against a different person. The subpoenaed documents arose in the course of the complainant's treatment and were considered potentially relevant to the defence.

Judge Freeman declined to grant the appellant access to the produced material. His Honour held that the sexual assault communications privilege under Division 1B of Part 3.10 of the Evidence Act 1995 (NSW) applied derivatively to documents produced on subpoena, and further that those communications attracted public interest immunity under s 130 of the Act. The appellant challenged both conclusions on appeal.

  • Whether Division 1B of Part 3.10 of the Evidence Act 1995 (NSW) applies directly to the production of documents on subpoena, not just to the adduction of evidence in court proceedings
  • Whether Division 1B applies derivatively (by analogy) to documents produced on subpoena, even if it does not apply directly
  • Whether confidential sexual assault communications attract public interest immunity, preventing production
  • Whether a new common law privilege protecting sexual assault communications should be recognised

Decision

Direct application of Division 1B. The Court held unanimously that Division 1B does not, on its proper construction, extend to the production of documents on subpoena. The statutory language covers only the adduction of evidence in court. The Court refused to read additional words into the provision, holding that the interpretation advanced by the respondents was not reasonably open. An intention discerned from extrinsic materials cannot be used to supply a legislative omission where the result cannot be deduced by a recognised technique of statutory construction.

Derivative application. The Court also rejected any derivative or analogical application of Division 1B to documents produced on subpoena. The earlier Court of Criminal Appeal decision in R v N (1998), which had supported derivative application, was held to be incorrect. James J noted that there is only one common law in Australia, and it cannot be modified in different jurisdictions by analogy with varying statutory provisions.

Public interest immunity. By majority (Spigelman CJ, Abadee, Barr and James JJ, with Beazley JA dissenting), the Court held that sexual assault communications do not attract public interest immunity. Public interest immunity is concerned with the conduct of governmental functions; the provision of sexual counselling to individuals is not governmental in character. The majority also found that the evidence before the Court about the potential chilling effect on reporting of sexual assaults was insufficient and unsystematic to support extending the immunity. Beazley JA in dissent considered that the risk of disclosure inhibits reporting and that an immunity could be developed by analogy with the police informer category.

Common law privilege. The majority declined to recognise a new common law privilege protecting sexual assault communications. An intermediate appellate court should be slow to create new categories of privilege. For a new privilege to be recognised, the underlying public policy must be capable of precise statement and must reflect so widely held a community opinion that the court is recognising, not creating, the rule. The majority found that the material before the Court was too limited and unsystematic to establish that any such privilege had attained the requisite level of community acceptance. Several judges also noted that Parliament had recently legislated in this field, counselling restraint in common law development.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Division 1B of Part 3.10 of the Evidence Act 1995 (NSW) governs the adduction of evidence in court proceedings and does not, on its terms, extend to the production of documents on subpoena, whether directly or by analogy.
  • The Court of Criminal Appeal overruled R v N (1998), which had held that Division 1B applied derivatively to subpoenaed documents, on the basis that courts cannot modify the common law by analogy with jurisdiction-specific statutes.
  • Public interest immunity is confined to the conduct of governmental functions; the provision of private sexual counselling services does not meet that threshold, and the category cannot be extended simply because competing public interests can be identified on both sides.
  • Recognition of a new common law privilege requires a public policy that is precisely statable and so broadly accepted in the community that the court can genuinely be said to be recognising rather than creating the rule; the evidence presented did not satisfy that threshold.
  • Where Parliament has recently legislated in a field, courts should exercise restraint in developing common law doctrines that would operate in the same space.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), Pt 3.10, Div 1B (ss 126A–126L); s 130
- Crimes Act 1900 (NSW), ss 577A, 578, 578B

Cases
- Wentworth Securities Ltd v Jones [1980] AC 74
- Kingston v Kiprose Pty Ltd (1987) 11 NSWLR 404
- CIC Insurance Ltd v Bankstown Football Club Ltd (1995–97) 187 CLR 384
- Telstra Corporation v Australia Media Holdings & Ors (1997) 41 NSWLR 277
- Aikins v Abigroup Limited (1998) 43 NSWLR 539
- Adelaide Steamship Co Ltd v Spalvins (1998) 152 ALR 417
- Esso Australia Resources Ltd v Commissioner of Taxation (1998) 159 ALR 664
- Northern Territory v GPAO (1999) 161 ALR 318
- Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 147 CLR 297
- R v Bolton; Ex parte Beane (1987) 162 CLR 514
- Newcastle City Council v GIO General Ltd (1996–97) 191 CLR 88
- Lange v Australian Broadcasting Commission (1997) 189 CLR 520
- Australian National Airlines Commission v The Commonwealth (1975) 132 CLR 582
- Sankey v Whitlam (1979–80) 142 CLR 1
- Commonwealth v Northern Land Council (1992–93) 176 CLR 604
- D v NSPCC [1978] AC 171
- Marks v Beyfus (1890) 25 QBD 494
- Breen v Williams (1994) 35 NSWLR 522; (1995–96) 186 CLR 71
- Dietrich v R (1992) 177 CLR 292
- McGuinness v The Attorney General of Victoria (1939–40) 63 CLR 73
- Jaffee v Redmond (1996) 135 L Ed 2d 337
- M(A) v Ryan (1997) 143 DLR (4th) 1
- R v N, unreported, NSWCCA, 21 July 1998
- R v Bull (1997) 17 SR(WA) 364
- M v L (1999) 1 NZLR 267