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8
Court of Criminal Appeal 15 February 2013

NAR v PPC1

[2013] NSWCCA 25

Also reported as (2013) 224 A Crim R 535
Sexual offences
CRIMINAL LAW INTERLOCUTORY APPEAL SEXUAL ASSAULT COMMUNICATIONS PRIVILEGE CONSENT TO PRODUCTION CRIMINAL PROCEDURE ACT 1986, SS 295 306 CONSTITUTIONAL LAW

Citation: NAR v PPC1 [2013] NSWCCA 25
Court: NSW Court of Criminal Appeal
Date: 15 February 2013
Judge(s): Hoeben JA, Adams J, Beech-Jones J

Background

The applicant faced four counts in the District Court, including three charges of sexual assault without consent and one charge of indecent assault, all alleged to have occurred on 25 November 2010. After arraignment, the applicant sought access to documents produced under subpoena, which were expected to contain counselling records relating to the complainant's psychiatric state both before and after the alleged offences.

The District Court refused access, finding the applicant had not satisfied the criteria under s 299D(1) of the Criminal Procedure Act 1986 (CPA). The applicant then sought leave to appeal that refusal under s 5F(3) of the Criminal Appeal Act 1912. The applicant also raised a constitutional challenge to the relevant provisions of the CPA.

  • Whether the District Court erred in refusing access to subpoenaed counselling records under the sexual assault communications privilege regime in Chapter 6, Part 5, Division 2 of the CPA
  • What procedure is required before a court may inspect documents potentially containing "protected confidences" under the CPA
  • Whether the applicant demonstrated that the documents had "substantial probative value" as required by s 299D(1)
  • Whether the relevant provisions of the CPA were constitutionally valid, including whether they were repugnant to judicial power or undermined the institutional integrity of State courts exercising federal jurisdiction (the Kable principle)

Decision

The Court refused leave to appeal, finding the applicant had not established that the District Court erred in concluding the s 299D(1) criteria were not met. On the face of the material, it was difficult to identify substantial probative value in the counselling records, though the Court acknowledged potential relevance to the complainant's credit, including matters relating to subsequent disclosures and the circumstances of an alleged "mental crisis."

Adams J wrote separately to address the correct procedure under the CPA. His Honour observed that, as a practical matter, a court cannot assess whether the s 299D(1) tests are satisfied without first examining the documents themselves. This means production must generally precede any determination of leave, and the appropriate mechanism is an order under s 299B following notice under s 299C, rather than a subpoena. Adams J noted that in the present case production had been obtained via subpoena, contrary to the Act.

Adams J further observed that the "draconian" legislative scheme places a heavy burden on trial judges, who must examine documents personally to discharge their duty to ensure a fair trial. His Honour suggested Parliament might consider allowing counsel to examine material and make submissions, subject to strict non-disclosure conditions, to assist the judge in making the statutory assessment.

On the constitutional challenge, the Court followed and affirmed its earlier decision in KS v Veitch (No 2) [2012] NSWCCA 266. The Court held that the relevant CPA provisions are laws relating to evidence and procedure that do not apply of their own force in federal jurisdiction but are picked up by s 79(1) of the Judiciary Act 1903 (Cth). The provisions satisfied the applicable constitutional standard and were not repugnant to judicial power or the institutional integrity of State courts. The constitutional challenge was dismissed.

Orders Made

• The application for leave to appeal be refused.

Key Takeaways

  • Under the sexual assault communications privilege regime in the CPA, a court generally cannot assess whether the s 299D(1) criteria are satisfied without first inspecting the documents themselves, meaning production must ordinarily precede the leave determination.
  • The correct procedure for obtaining production of potentially privileged counselling records is an order under s 299B (following notice under s 299C), not a subpoena; production obtained by subpoena alone may be contrary to the Act.
  • A trial judge has a duty to examine subpoenaed material personally when inspection is essential to determine whether the s 299D(1) tests are met, regardless of whether a formal request is made, given the overriding obligation to ensure a fair trial.
  • The Court of Criminal Appeal confirmed the constitutional validity of Chapter 6, Part 5, Division 2 of the CPA, finding the provisions were not repugnant to judicial power and did not undermine the institutional integrity of State courts exercising federal jurisdiction, consistent with KS v Veitch (No 2).
  • State laws of evidence and procedure such as the sexual assault communications privilege do not apply "of their own force" in federal jurisdiction but are applied via s 79(1) of the Judiciary Act 1903 (Cth), a distinction the Court identified as central to the constitutional analysis.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), ss 293, 295, 296, 298, 299B, 299C, 299D, 300, Ch 6 Pt 5 Div 2
- Criminal Appeal Act 1912 (NSW), s 5F(3)
- Crimes Act 1900 (NSW), ss 61I, 61L
- Evidence Act 1995 (NSW), Pt 3.7 Div 2, Pt 3.10 Div 1B
- Judiciary Act 1903 (Cth), s 79(1)
- Criminal Code Act 1995 (Cth), s 270.6

Cases:
- KS v Veitch [2012] NSWCCA 186
- KS v Veitch (No 2) [2012] NSWCCA 266
- JAD v The Queen [2012] NSWCCA 73
- Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51
- R v Einfeld [2008] NSWCCA 215; 71 NSWLR 31
- Alister v R (1983) 154 CLR 404
- Queanbeyan City Council v Environment Protection Authority [2011] NSWCCA 108
- R v Van Phu Huo (NSWCCA, 18 July 1994, unrep)