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Court of Criminal Appeal 29 August 2012

KS v Veitch

[2012] NSWCCA 186

Sexual offencesPublic order & justice offences
CONSTITUTIONAL LAW APPEAL APPEAL FROM INTERLOCUTORY JUDGMENT LEAVE TO APPEAL PROCEDURE ISSUE OF SUBPOENA

Citation: KS v Veitch [2012] NSWCCA 186
Court: Court of Criminal Appeal, New South Wales
Date: 29 August 2012
Judge(s): Basten JA; Harrison J; Beech-Jones J

Background

The applicant was the complainant in criminal proceedings involving three charges of assault and sexual assault brought against the respondent. The respondent sought to subpoena medical records relating to the applicant's attendances at a hospital for counselling. Those records fell within the "sexual assault communications privilege" established by Part 3 of Chapter 4 of the Criminal Procedure Act 1986 (NSW), specifically sections 295 to 306.

The respondent issued the subpoena and obtained production of the documents to the District Court without first seeking leave of the court or giving notice to the Director of Public Prosecutions and the applicant, as required by sections 298(1) and 299C. The applicant applied to have the subpoena set aside, or alternatively, for access to the produced documents to be refused. On 8 May 2012, Norrish DCJ declined to set aside the subpoena and granted the respondent's legal representatives access to a limited bundle of the produced documents.

The applicant sought leave to appeal to the Court of Criminal Appeal under section 5F(3AA) and (3AB) of the Criminal Appeal Act 1912 (NSW). During the hearing, the respondent also raised a challenge to the constitutional validity of key provisions of the privilege regime, and separately submitted that the subpoena had been issued without jurisdiction because the respondent had not yet been arraigned at the time it was issued.

  • Whether the District Court had jurisdiction to issue a subpoena in criminal proceedings prior to the respondent's arraignment
  • Whether the failure to comply with the leave and notice requirements in sections 298(1) and 299C of the Criminal Procedure Act rendered the subpoena, and the production of documents, invalid
  • Whether notices of a constitutional matter should be issued under section 78B of the Judiciary Act 1903 (Cth), given the respondent's foreshadowed constitutional challenge to the privilege provisions

Decision

Jurisdiction prior to arraignment: The Court rejected the argument that section 130 of the Criminal Procedure Act is a complete statement of the District Court's jurisdiction in indictable proceedings. Such a construction would be inconsistent with the Court's recognised powers to list proceedings, extend time for presentation of an indictment, and allow amendment of an indictment, all of which occur before arraignment. The Court therefore held that the District Court has some jurisdiction prior to arraignment, including the power to issue a subpoena for the purpose of criminal proceedings no later than when the indictment is filed.

Validity of the subpoena and document production: The Court held that the consequences of issuing a subpoena without leave, and producing documents without leave, must be determined by statutory construction of the Criminal Procedure Act. The Court found the answer was not clear, and noted that even if the subpoena itself were valid, the production of documents without the court's leave might be independently invalid. The Court observed that the consequences flowing from invalidity, in circumstances where documents had already been produced, were also uncertain. Because of the limited judicial consideration of these provisions and the importance of the issues, the Court granted leave to appeal.

Constitutional notices: On the question of section 78B notices, the Court identified the applicable threshold: it must be satisfied that a real and substantial constitutional issue is sought, in good faith, to be identified and argued. Counsel raising such an issue is obliged to identify the point with precision at an early stage and act expeditiously. Despite the inadequacy of the materials before the Court, the Court could not be satisfied that the constitutional challenge was not raised in good faith, and concluded that an arguable constitutional point could be raised. Accordingly, the Court directed that section 78B notices be issued.

Orders Made

  • Leave to appeal granted
  • The respondent directed to issue section 78B notices under the Judiciary Act 1903 (Cth) specifying the constitutional matter and annexing a copy of the judgment, within 14 days
  • The respondent directed to file and serve further written submissions limited to the section 78B matter within 14 days, served also on any intervening Attorney-General within 5 working days of receiving notice
  • The respondent directed to file an affidavit setting out responses to the section 78B notice seven days before the further hearing
  • The appellant and any intervening Attorney-General directed to file written submissions within 28 days of the judgment
  • The matter listed for further argument on a date to be fixed by the Registrar

Key Takeaways

  • Section 130 of the Criminal Procedure Act is not a complete statement of the District Court's jurisdiction over indictable proceedings. The District Court retains power to take procedural steps, including issuing subpoenas, prior to arraignment, at least from the time an indictment is filed.
  • Under the sexual assault communications privilege regime (sections 295 to 306 of the Criminal Procedure Act), both the issue of a subpoena and the production of documents require prior leave of the court. A failure to obtain that leave raises questions of invalidity that are not straightforwardly resolved by the statute.
  • The consequences of document production that occurs without the required leave remain an open and significant question of statutory construction, even where production has already taken place.
  • For section 78B notices to be directed, the court must be satisfied that a real and substantial constitutional issue is sought to be argued in good faith, with counsel required to identify the point precisely and act on it expeditiously.
  • Beech-Jones J noted that applications for leave to appeal by victims under section 5F(3AA) carry a particular character: if an access order is left undisturbed, the victim's rights under the privilege regime are lost, giving such orders a degree of finality not shared by most interlocutory orders made against accused persons.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), ss 17, 20, 111, 113, 114, 122, 127, 129, 130, 170, 295–306
- Criminal Appeal Act 1912 (NSW), s 5F(3AA) and (3AB)
- District Court Act 1973 (NSW), s 166
- District Court Rules 1973, Pt 53, Div 2, rr 10D, 18–25
- Judiciary Act 1903 (Cth), s 78B
- Interpretation Act 1987 (NSW), ss 34, 35
- Constitution, Ch III

Cases:
- GG v The Queen [2010] NSWCCA 230; 204 A Crim R 125
- Pelechowski v The Registrar, Court of Appeal (NSW) [1999] HCA 19; 198 CLR 435
- Nicholas v The Queen [1998] HCA 9; 193 CLR 173
- Australian Competition and Consumer Commission v CG Berbatis Pty Ltd [1999] FCA 1151; 95 FCR 292
- Pham v Secretary, Department of Employment and Workplace Relations [2007] FCAFC 179