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District Court 23 October 2012

R v Markarian

[2012] NSWDC 197

Sexual offences
CRIMINAL LAW JUDGMENT SEXUAL ASSAULT COMMUNICATIONS PRIVILEGE PROTECTED CONFIDENCE UNWORKABLE PROVISIONS URGENT NEED FOR REFORM

Citation: R v Markarian [2012] NSWDC 197
Court: District Court of New South Wales
Date: 23 October 2012
Judge(s): Berman SC DCJ

Background

The accused faced a special hearing (a proceeding conducted where a defendant has been found unfit to plead) on charges of sexual assault. Before the hearing, subpoenas were issued without prior leave of the court to hospitals, area health services, and a women's refuge, seeking documents relating to the complainant. A judge subsequently granted leave retrospectively, and the documents were produced.

The court was then required to determine whether those documents, potentially containing "protected confidences" under the Criminal Procedure Act, should be disclosed to the parties. This required the court to grapple with the definition of "protected confidence" in s 296 and the disclosure test in s 299D.

The exercise prompted Berman SC DCJ to deliver a strongly worded critique of the legislative scheme, describing the provisions as unworkable and calling urgently for parliamentary reform.

  • Whether the documents produced on subpoena contained "protected confidences" within the meaning of s 296 of the Criminal Procedure Act
  • Whether the definition of "protected confidence" is limited to communications concerning the trauma of the alleged sexual assault, or extends more broadly to any treatment received by an alleged victim
  • Whether the documents, if they did contain protected confidences, should be disclosed under the s 299D test
  • Whether the legislative scheme itself is workable in the context of a criminal trial or special hearing

Decision

The scope of "protected confidence"

The court rejected the accused's submission that the definition of "protected confidence" in s 296 should be read narrowly, confined only to communications aimed at overcoming the trauma of an alleged sexual assault. Berman SC DCJ found the words of s 296 were clear and not ambiguous. He concluded that s 296(2), which can protect communications made even before an alleged sexual assault occurred, made the narrower reading untenable. The court noted this meant second reading speeches suggesting the provision was limited to "discussions about the sexual assault" were inaccurate.

The women's refuge documents

The court found that the documents from the women's refuge did not qualify as protected confidences. The documents contained notes made by unidentified staff, and the court had no evidence of those persons' training, study, or experience relevant to counselling, as required by s 296(5). When counsel for the complainant declined an opportunity to adduce further evidence on this point, the entire folder fell outside the protected confidence regime. Accordingly, both parties were granted access to those documents.

The hospital and mental health documents

The court proceeded on the basis that documents from Wollongong Community Mental Health Service and Wollongong Hospital did record protected confidences. Applying s 299D, the court found no substantial probative value in material relating to the complainant's mental health or history of alcohol consumption, and declined to order disclosure of those parts of the documents. However, references to intravenous drug use were found to have sufficient probative value, and those portions were ordered disclosed.

The broader critique

Berman SC DCJ concluded the judgment with an explicit statement of discomfort, noting that the provisions made it more likely an accused would be unable to properly prepare a defence. He called on Parliament to examine whether the provisions were necessary at all and, if so, to make them both workable and consistent with the long-established rights of accused persons.

Orders Made

  • Exhibit 3 (the women's refuge documents) to be disclosed to both parties
  • Those parts of the hospital and mental health exhibits relating to the complainant's intravenous drug use to be disclosed

Key Takeaways

  • The District Court held that "protected confidence" under s 296 of the Criminal Procedure Act is not limited to communications about the sexual assault itself; the plain words of the section extend more broadly, and second reading speeches suggesting otherwise were found to be inaccurate.
  • Where a person seeking to resist disclosure of documents cannot establish that the maker of counselling notes possessed the requisite training, study, or experience under s 296(5), those documents fall entirely outside the protected confidence regime.
  • A retrospective grant of leave for subpoenas issued without prior court approval under s 298 is a live and unresolved procedural question the judgment flags but does not definitively answer.
  • The decision reinforces concerns first raised in R v Young (1999) 46 NSWLR 681 that the foundational assumptions underlying the sexual assault communications privilege provisions may themselves be flawed.
  • Berman SC DCJ issued an explicit call for urgent parliamentary review, finding the provisions poorly drafted, practically unworkable, and potentially incompatible with an accused person's right to mount a proper defence.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act (NSW), ss 296, 298, 299D
- Interpretation Act (NSW), s 34

Cases
- R v Young (1999) 46 NSWLR 681