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16
Court of Criminal Appeal 10 December 2012

KS v Veitch (No 2)

[2012] NSWCCA 266

Also reported as (2012) 84 NSWLR 172 229 A Crim R 46
Sexual offencesPublic order & justice offences
CRIMINAL LAW PROCEDURE SEXUAL ASSAULT COMMUNICATIONS PRIVILEGE 306 CONSTITUTIONAL LAW LIMITS ON LEGISLATIVE POWER OF STATES FAIR TRIAL

Citation: KS v Veitch (No 2) [2012] NSWCCA 266
Court: NSW Court of Criminal Appeal
Date: 10 December 2012
Judge(s): Basten JA (principal judgment); Harrison J and Beech-Jones J (agreeing)

Background

The respondent faced trial in the District Court on three counts: one of assault occasioning actual bodily harm and two of sexual intercourse without consent. The applicant (identified only as KS, subject to a non-publication order) was the alleged victim of all three offences.

Before the respondent was arraigned, a subpoena was issued at his request to Cumberland Hospital, seeking the applicant's medical records. That subpoena was issued and the documents were produced to the Court without the leave of the trial court, which is required under s 298 of the Criminal Procedure Act 1986 (NSW). Those provisions protect "protected confidences," including counselling communications, under what the Act calls the sexual assault communications privilege.

On 8 May 2012, the primary judge (Norrish DCJ) dismissed the applicant's application to set aside the subpoena and, after inspecting the documents, identified those to be made available to the respondent. The applicant appealed to the Court of Criminal Appeal. During that appeal, the respondent challenged the constitutional validity of the relevant provisions of the Criminal Procedure Act, which required the Court to issue notices to Attorneys-General under s 78B of the Judiciary Act 1903 (Cth) before proceeding. A first judgment dealt with preliminary matters (KS v Veitch [2012] NSWCCA 186); this second judgment resolved the remaining issues.

  • Whether the subpoena was effective despite having been issued without the leave of the trial court as required by s 298 of the Criminal Procedure Act
  • Whether ss 298(1) and (2) and s 299D of the Criminal Procedure Act are constitutionally valid, having regard to principles of federal judicial power and the implied requirement of a fair trial
  • Whether the primary judge erred in ordering that certain of the produced documents be made available to the respondent

Decision

Issue 1: Effect of the subpoena issued without leave

The Court held that the subpoena was not automatically void simply because it was issued and the documents produced without the leave required by s 298. The trial court retained the power to treat the procedural breach as an irregularity and, having received the documents itself, could then proceed to consider whether leave should be granted under s 298(2) for the documents to be produced to a party. That approach avoided unnecessary disruption while still respecting the substance of the privilege regime.

Issue 2: Constitutional validity

The Court upheld the constitutional validity of the impugned provisions. Because the Criminal Procedure Act is a State law governing evidence and procedure, it does not directly engage the principles applicable to federal judicial power. The separation of powers doctrine operates differently at State level, and cases concerning federal jurisdiction were distinguished. The provisions fall squarely within the State Parliament's power to regulate criminal trials and are neither arbitrary nor manifestly disproportionate. While the provisions may make it more difficult for an accused to access certain material, they do not deprive the accused of information to which there is a presumptive entitlement, and their application would not tend to bring the trial process into disrepute.

Issue 3: The primary judge's order to release documents

The Court found that the primary judge erred in ordering that the identified documents be made available to the respondent. The material produced was more than five years old at the time of the alleged offences and could not have had substantial probative value. The primary judge gave insufficient weight to the potential effects on the applicant's future treatment, particularly where the need for ongoing counselling following highly traumatic events could not be discounted. The judge also failed to weigh adequately the public interest in protecting counselling communications that pre-dated the alleged offences, and did not properly consider whether the public interest in admitting the material substantially outweighed the public interest in protecting the confidences. The appeal was allowed.

Orders Made

• Agree with the orders proposed by Basten JA

Key Takeaways

  • Under ss 298(1) and (2) of the Criminal Procedure Act 1986 (NSW), both the issue of a subpoena seeking protected counselling communications and the production of such documents require the leave of the court; a subpoena issued without that leave is procedurally irregular but not automatically void, and the court may proceed to consider a leave application.
  • The Court of Criminal Appeal confirmed that the sexual assault communications privilege provisions are constitutionally valid State laws, falling within the State Parliament's power to regulate criminal trial procedure, and are not arbitrary or manifestly disproportionate.
  • Because the Criminal Procedure Act operates as State law relating to evidence and procedure, it does not engage federal separation of powers principles of its own force; cases concerning federal jurisdiction are not directly applicable to the State setting.
  • A finding that protected documents lack substantial probative value, particularly where they predate the alleged offences by several years, weighs heavily against granting leave for disclosure, and courts must expressly weigh the public interest in protecting the confidences against the public interest in admitting the material.
  • No weight was given at first instance to the ongoing counselling needs of the applicant or to the statutory purpose of protecting pre-offence counselling records, errors the Court of Criminal Appeal treated as vitiating the discretionary decision to release the documents.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), ss 31, 130, 138, 150, 151, 293, 294A, 296, 297, 298, 299A, 299B, 299D, 300, 301, 302; Pt 5, Div 2
- Criminal Appeal Act 1912 (NSW), s 5F
- Judiciary Act 1903 (Cth), s 78B
- Crimes Act 1914 (Cth), s 15X
- Constitution, ss 51(xxvii), 80, Ch III
- Courts and Crimes Legislation Amendment Act 2012 (NSW), Sch 1.1 [11]

Cases
- KS v Veitch [2012] NSWCCA 186
- Nicholas v The Queen [1998] HCA 9; 193 CLR 173
- Commonwealth v Melbourne Harbour Trust Commissioners [1922] HCA 31; 31 CLR 1
- Williamson v Ah On [1926] HCA 46; 39 CLR 95
- Huddart, Parker & Co Pty Ltd v Moorehead [1909] HCA 36; 8 CLR 330
- Sorby v The Commonwealth [1983] HCA 10; 152 CLR 281
- Forge v Australian Securities and Investments Commission [2006] HCA 44; 228 CLR 45
- Jago v District Court of New South Wales [1989] HCA 46; 168 CLR 23
- Dietrich v The Queen [1992] HCA 57; 177 CLR 292
- South Australia v Totani [2010] HCA 39; 242 CLR 1
- Wainohu v State of New South Wales [2011] HCA 24; 243 CLR 181
- Ridgeway v The Queen [1995] HCA 66; 184 CLR 19