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District Court 19 April 2013

R v Bruce RUSSELL

[2013] NSWDC 129

Sexual offences
CRIMINAL LAW PROCEDURE SUBPOENA SEXUAL ASSAULT COMMUNICATION PRIVILEGE THE MEANING OF A "PROTECTED CONFIDENCE"

Citation: R v Bruce RUSSELL [2013] NSWDC 129
Court: District Court of New South Wales
Date: 19 April 2013
Judge(s): Marien SC DCJ

Background

The accused faced trial on five counts of sexual assault against a complainant, each charged under s 61I of the Crimes Act 1900. In the lead-up to trial, the defence served subpoenas on St Vincent's Hospital and Royal Prince Alfred Hospital seeking all documents relating to the complainant. Both hospitals complied, producing a substantial volume of records running to the equivalent of approximately twelve lever arch folders combined.

The complainant's legal representative appeared before the court and claimed sexual assault communication privilege over every document produced by St Vincent's Hospital under Division 2 of Part 5 of Chapter 6 of the Criminal Procedure Act 1986. The claim was later extended to consider the Royal Prince Alfred Hospital records as well.

The central procedural question was whether subpoenas had been issued without the required leave of the court, and the substantive question was which documents, if any, genuinely attracted the privilege. The court proceeded to examine all documents to determine whether leave should be granted for the parties to access them.

  • Whether communications made by a complainant to hospital staff in connection with physical injuries unrelated to the alleged sexual assault could constitute a "protected confidence" under the Criminal Procedure Act 1986
  • The proper meaning of "counsel", "counselling", and "counselling communication" within the statutory scheme
  • Whether the expansive terms of s 296(2) extend privilege to communications made before the alleged assault or unrelated to it
  • Whether the three-part test under s 299D(1) was satisfied with respect to specific categories of documents, such that leave should be granted for the parties to access them

Decision

The court examined the statutory definition of "protected confidence" in s 296 of the Criminal Procedure Act 1986, which requires a "counselling communication" made by, to, or about a victim or alleged victim of a sexual assault offence. A counselling communication in turn requires a communication made in confidence to a "counsellor" who is counselling the person in relation to harm they may have suffered. The court considered whether hospital staff treating a patient for physical injuries unrelated to any sexual assault could be regarded as engaging in "counselling" within the meaning of those provisions.

The court drew on the Court of Criminal Appeal's observations in KS v Veitch (No 2) [2012] NSWCCA 266, which noted that the expansive provisions of s 296(2) tend to sit in tension with the narrower definition of "counselling communication" in s 296(4). Section 296(2) provides that a counselling communication remains a protected confidence even if it was made before the relevant offence or was unrelated to it, a breadth that the Court of Criminal Appeal described as potentially conflicting with the core definition.

On the practical question of which documents attracted leave under s 299D(1), the court conducted a document-by-document review. It upheld privilege claims over a large number of records and granted leave for the parties to access only two categories: documents relating to illicit drug use by the complainant, and documents relating to complaints of auditory hallucinations. The court was satisfied those categories met the tests of substantial probative value, unavailability of alternative evidence, and that the public interest in admissibility substantially outweighed the interest in confidentiality. Documents relating to arson, self-harm, and so-called "hospital shopping" did not meet the substantial probative value threshold, and leave was refused for those.

The court also addressed the procedural irregularity that the subpoenas had been issued without prior leave of the court as required by s 298. Following the approach endorsed in Veitch (No 2), the court treated the irregularity as one it could disregard, on the basis that the same tests that govern the grant of leave to issue a subpoena also govern the grant of access to documents produced under one.

Orders Made

  • Leave granted for the parties to access documents marked with red tags, limited to portions of those documents concerning illicit drug use and auditory hallucinations by the complainant, with access restricted to counsel only (not solicitors or other parties)
  • Privilege upheld over all other documents marked accordingly; leave refused for access to those records
  • All documents not the subject of an upheld privilege claim (marked with yellow or green tags, but not blue tags) made available to the parties

Note: Before judgment was formally concluded, the Director of Public Prosecutions directed that no further proceedings be taken. By agreement between the parties, judgment was nonetheless delivered in full.

Key Takeaways

  • The District Court confirmed that the concept of a "protected confidence" under the Criminal Procedure Act 1986 turns on whether a communication qualifies as a "counselling communication" made to a "counsellor" engaged in counselling, and that not every communication made to hospital staff in a medical treatment context automatically satisfies that definition.
  • Under s 296(2), the statutory scheme extends potential protection to communications made before an alleged sexual assault occurred or unrelated to it, though the Court of Criminal Appeal in KS v Veitch (No 2) noted that this broad reach sits in tension with the narrower core definition of "counselling communication" in s 296(4).
  • A procedural irregularity in issuing subpoenas without prior leave under s 298 does not necessarily invalidate the process: the court may disregard the irregularity and proceed directly to assess whether leave for access should be granted, since the same threshold applies to both questions.
  • To obtain access to documents that record a protected confidence, the party seeking access must satisfy all three limbs of s 299D(1): substantial probative value, unavailability of alternative evidence, and a public interest in admissibility that substantially outweighs the interest in confidentiality and protection from harm.
  • Substantial probative value is the threshold that divides which categories of sensitive material may be accessed: documents relating to self-harm, arson, and hospital-seeking behaviour did not reach that threshold, while records of illicit drug use and auditory hallucinations did.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), in particular Chapter 6, Part 5, Division 2 (ss 295, 296, 298, 299D)
- Crimes Act 1900 (NSW), s 61I

Cases
- KS v Veitch (No 2) [2012] NSWCCA 266
- R v Markarian [2012] NSWDC 197