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6
Court of Criminal Appeal 18 November 2013

PPC v Williams

[2013] NSWCCA 286

Also reported as (2013) 238 A Crim R 25
Sexual offences
CRIMINAL LAW INTERLOCUTORY APPEAL SEXUAL ASSAULT COMMUNICATIONS PRIVILEGE WHERE CONFIDENTIAL AFFIDAVITS PROVIDED

Citation: PPC v Williams [2013] NSWCCA 286
Court: Court of Criminal Appeal, New South Wales
Date: 18 November 2013
Judge(s): Gleeson JA (at [1]); R A Hulme J (at [98]); Adamson J (at [99])

Background

The applicant was the complainant in a sexual assault trial in the District Court. During cross-examination, concerns arose about her welfare and it emerged she had taken antipsychotic medication. Additional information about her pre-existing medical and psychiatric history also came to light, ultimately leading to the discharge of the jury and the setting down of a new trial.

The accused (the respondent) obtained leave to issue subpoenas to several medical and psychiatric providers who had treated the complainant, seeking records of her diagnoses, test results, prescribed medications, and medication compliance. That material was produced to the court and the respondent then applied for the parties' legal representatives to be given access to it under s 298(2) of the Criminal Procedure Act 1986.

The applicant opposed the access application, flagging specific objections to different categories of documents. The trial judge ultimately granted access to most of the material. The applicant sought leave to appeal that interlocutory decision to the Court of Criminal Appeal.

  • Whether the trial judge erred in his approach to assessing "substantial probative value" under s 299D(1) of the Criminal Procedure Act 1986 before granting access to documents subject to sexual assault communications privilege.
  • Whether the trial judge failed to undertake the balancing exercise required by s 299D(1)(c), weighing the probative value of the documents against the harm likely to be caused to the complainant by their disclosure.
  • Whether the trial judge erred by allowing access to documents that may have been inadmissible under s 293 of the Act (which restricts the use of evidence about a complainant's prior sexual history), without first considering that question as part of the assessment of probative value.

Decision

The Court of Criminal Appeal, with Gleeson JA writing the leading judgment (with Hulme J and Adamson J agreeing), allowed the appeal. The Court found the trial judge had not properly applied the preconditions in s 299D(1) before granting access to the disputed documents.

On the substantial probative value question, the Court held that the trial judge needed to assess whether the documents had substantial probative value having regard to all the circumstances, including the issues at trial. That assessment could not be conducted in isolation from s 293, which renders evidence of prior sexual history inadmissible subject to certain exceptions. If documents would be inadmissible under s 293, that bears directly on whether they can be said to carry substantial probative value.

On the balancing exercise, the Court confirmed that s 299D(1)(c) requires the court to be satisfied that the public interest in disclosure outweighs both the public interest in preserving confidentiality of protected communications and the harm that disclosure may cause to the complainant. The trial judge's failure to undertake this exercise was an error that justified intervention.

The Court also addressed the relationship between s 298(2) and s 302. Section 302 (which allows ancillary orders to limit harm from disclosure) is only available after the s 299D(1) preconditions have been met. It cannot be used to bypass those preconditions. Where the evidence before the court does not permit a view on the s 293 admissibility question to be formed, the generally appropriate course is to defer the access application until a ruling on admissibility can be made.

Orders Made

  • Leave to appeal granted under s 5F(3AB) of the Criminal Appeal Act 1912.
  • Appeal allowed.
  • The trial judge's orders of 2 August 2013 were set aside, except to the extent they permitted access to documents the applicant had not objected to (those tagged with a green flag).
  • The application for leave to produce documents under s 298(2) of the Criminal Procedure Act 1986 was referred back to the trial judge for reconsideration in accordance with the Court's rulings.

Key Takeaways

  • Before granting access to subpoenaed material subject to sexual assault communications privilege under s 298(2) of the Criminal Procedure Act 1986, a court must be satisfied that all preconditions in s 299D(1) are met, including that the documents have substantial probative value and that the public interest in disclosure outweighs both the privacy interest and the harm to the complainant.
  • The assessment of "substantial probative value" under s 299D(1)(a) cannot be conducted without also considering whether the material would be admissible at trial. Where documents may be excluded by s 293 as relating to prior sexual history, that potential inadmissibility is directly relevant to their probative value.
  • Section 302, which empowers courts to make ancillary orders limiting harm from disclosure of protected confidences, operates only after the s 299D(1) preconditions have been satisfied. It is not a mechanism for bypassing those preconditions.
  • Where the evidence before the court is insufficient to resolve the s 293 admissibility question, deferring the access application until that question is determined is generally the appropriate course.
  • The Court of Criminal Appeal confirmed its earlier construction of the sexual assault communications privilege scheme from KS v Veitch (No 2) [2012] NSWCCA 266 and NAR v PPC1 [2013] NSWCCA 25, neither party having disputed that framework.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW): ss 3, 293, 295, 296, 298, 299, 299A, 299B, 299D, 302
- Criminal Appeal Act 1912 (NSW): s 5F
- Crimes Act 1900 (NSW): ss 61J, 66C, 578A
- Children (Criminal Proceedings) Act 1987 (NSW): s 15A

Cases
- KS v Veitch (No 2) [2012] NSWCCA 266
- NAR v PPC1 [2013] NSWCCA 25
- House v The King [1936] HCA 40; 55 CLR 499
- Queanbeyan City Council v Environment Protection Authority [2011] NSWCCA 108
- R v Einfeld [2008] NSWCCA 215; 71 NSWLR 31