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Court of Criminal Appeal 18 October 2000

R v Norman Lee

[2000] NSWCCA 444

Also reported as 50 NSWLR 289
Sexual offences
CRIMINAL LAW AND PROCEDURE APPEAL FROM DECISION OF DISTRICT COURT SUBPOENA FOR PRODUCTION OF DOCUMENTS SEXUAL ASSAULT COMMUNICATION PRIVILEGE 'PROTECTED CONFIDENCE'

Citation: R v Norman Lee [2000] NSWCCA 444
Court: NSW Court of Criminal Appeal
Date: 18 October 2000
Judges: Mason P, Heydon JA, Wood CJ at CL

Background

The accused faced five counts of indecent assault on a person under sixteen years of age, with the alleged offences occurring in 1989 to 1990 when the complainant was a primary school pupil. The proceedings were before the District Court, with trial set for 23 October 2000.

The accused issued a subpoena to Mission Australia seeking all records, notes, and counselling documents relating to the complainant. Mission Australia produced 73 pages of handwritten notes of telephone and face-to-face communications between the complainant and Mission Australia officers. The complainant objected, claiming the documents contained "protected confidences" within the meaning of the sexual assault communications privilege in Part 7 of the Criminal Procedure Act 1986.

The primary judge upheld the complainant's objection, finding the Mission Australia officers were "counsellors" within the statutory definition, that the documents therefore recorded protected confidences, and that they lacked substantial probative value. The accused sought leave to appeal that ruling.

  • Whether the Mission Australia officers fell within the definition of "counsellor" under s 148(4)(a) of the Criminal Procedure Act 1986, specifically whether they were "counselling, giving therapy to or treating" the complainant for an emotional or psychological condition
  • Whether the documents therefore constituted "counselling communications" and, in turn, "protected confidences" under s 148(1)
  • Whether the documents had "substantial probative value" sufficient to displace the privilege under s 150(1)

Decision

The Court of Criminal Appeal granted leave to appeal, allowed the appeal, and set aside the orders of the primary judge. The court ordered Mission Australia to produce the documents, and granted both parties leave to inspect them.

On the question of whether the Mission Australia officers were "counsellors," the court's review of the documents (which it inspected directly, as the primary judge had) did not support the conclusion that the privilege applied on the basis reached below. The court's reasoning was necessarily delivered ex tempore given the imminent trial date, and the analysis was conducted largely through inspection of the documents themselves rather than evidence formally tendered by the parties.

The court also addressed the procedural mechanics carefully. The primary judge had not formally set aside the subpoena but had declared Mission Australia was not required to produce the documents for inspection. The Court of Criminal Appeal replaced that order with a positive production obligation, directing the documents be produced to the court and made available to legal representatives of both parties, subject to an undertaking limiting access to legal representatives only and excluding the accused from personally perusing the documents. The court noted that any further access conditions would be a matter for the trial judge.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • The declaration and order of Woods ADCJ set aside
  • Mission Australia ordered to produce the documents to the Court
  • Leave granted to the parties to inspect the documents when produced on subpoena
  • The accused directed to communicate speedily with Mission Australia to ensure compliance in sufficient time for trial preparation

Key Takeaways

  • The Court of Criminal Appeal confirmed that the definition of "counsellor" under s 148(4)(a) of the Criminal Procedure Act 1986 requires that the relevant person was "counselling, giving therapy to or treating" the confider for an emotional or psychological condition. Not every supportive or helping relationship with a complainant will satisfy this threshold.

  • Where neither party has access to subpoenaed documents claimed to be privileged, both the primary court and any appellate court may inspect those documents directly under s 156 of the Act in order to rule on the privilege claim. This procedure is described in the judgment as "unsatisfactory but inevitable."

  • A finding that documents lack "substantial probative value" for the purposes of s 150(1) must be grounded in proper analysis. The Court of Criminal Appeal did not accept the primary judge's conclusions on this issue in the circumstances of this case.

  • The sexual assault communications privilege under Part 7 of the Criminal Procedure Act 1986 protects "protected confidences," defined as counselling communications made by, to, or about a victim or alleged victim of a sexual assault offence. The privilege can be displaced where the court is satisfied of substantial probative value and that the public interest in disclosure outweighs the public interest in confidentiality.

  • Where a court upholds a privilege objection to a subpoena, the appropriate order concerns the obligation to produce rather than necessarily setting the subpoena aside entirely. The distinction matters for the mechanics of any subsequent production order.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), Part 7 (ss 148, 150, 156) — sexual assault communications privilege
- Criminal Appeal Act 1912 (NSW), s 5F — basis for the appeal application

Cases:
- Jaffee v Redmond 518 US 1 (1996) — cited in the proceedings (US authority on therapist-patient privilege)