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District Court 21 July 2014

R v Hickman

[2014] NSWDC 277

Sexual offences
CRIMINAL LAW SEXUAL ASSAULT EVIDENCE SUBPOENAS “COUNSELLING COMMUNICATION” PROTECTED CONFIDENCES

Citation: R v Hickman [2014] NSWDC 277
Court: District Court of New South Wales
Date: 21 July 2014
Judge(s): Cogswell SC DCJ

Background

A man was charged on indictment with sexual intercourse without consent, the alleged offence having occurred on 3 June 2012. The matter was listed for trial in Albury in October 2014. Before that trial, the accused sought to issue subpoenas to three individuals and one institution requiring production of documents.

The documents targeted by the subpoenas were, on their face, likely to be "counselling communications" within the meaning of s 296(4) of the Criminal Procedure Act 1986 (NSW). Some of those communications were also likely to qualify as "protected confidences" under the same provision. The complainant was separately represented and opposed the subpoenas being issued without leave.

The central procedural question was whether the accused could obtain an order for the subpoenas to issue, or whether leave of the court was first required under s 298(1) of the Act before any person could be compelled to produce documents recording a protected confidence.

  • Whether the accused required leave under s 298(1) of the Criminal Procedure Act 1986 (NSW) before subpoenas for documents recording protected confidences could be issued.
  • Whether s 299B of the Act empowered the court to order the subpoenas to issue as a preliminary step, so the court could inspect the documents before determining any leave application.
  • How the apparent tension between s 298(1) and s 299B is to be resolved.

Decision

Counsel for the complainant argued that s 298(1) applied as a threshold requirement: no person could be compelled to produce a document recording a protected confidence except with the court's leave. She further submitted that, before granting leave, the court would need to be satisfied of the criteria in s 299D, yet the accused could not realistically satisfy those criteria without the court first inspecting the documents. She contended this outcome was consistent with the protective purpose of the legislation.

Counsel for the accused relied on s 299B, which provides that where a question arises under the Division relating to a document, the court may consider the document and may make any orders it thinks fit to facilitate that consideration. The argument was that this provision empowers the court to order subpoenas to issue as a preliminary matter, enabling it to inspect the documents before ruling on a leave application under s 298(2).

Cogswell SC DCJ accepted the accused's argument, drawing directly on the Court of Criminal Appeal's analysis in KS v Veitch (No 2) [2012] NSWCCA 266. In that decision, Baston JA (with whom Harrison and Beech-Jones JJ agreed) held that the procedural steps in s 299B become necessary where the court must consider the s 299D criteria, including for the purpose of deciding whether to grant leave to issue a subpoena. His Honour further found that the potential inconsistency between s 298(1) and s 299B was resolved by s 299B(5), which provides expressly that s 299B has effect despite ss 297 and 298.

On that basis, the District Court was satisfied it had power to make an order issuing the subpoenas sought by the accused, for the purpose of obtaining the documents and determining any subsequent leave application.

Orders Made

• Order issuing the subpoenas sought by the accused man under s 299B(4) of the Criminal Procedure Act

Key Takeaways

  • Under s 299B of the Criminal Procedure Act 1986 (NSW), a court may order subpoenas to issue for documents likely to be protected confidences as a preliminary step, so that it can inspect those documents before ruling on a leave application under s 298.
  • The Court of Criminal Appeal in KS v Veitch (No 2) [2012] NSWCCA 266 had previously resolved the tension between s 298(1) and s 299B: s 299B(5) expressly provides that s 299B operates despite ss 297 and 298, giving the court access to documents before deciding whether they should be available to a party.
  • Issuing subpoenas under s 299B does not pre-empt or bypass the leave requirement in s 298(1). The subpoenas are issued to facilitate the court's own inspection, with the leave question remaining to be determined once the documents are before the court.
  • The protective purpose of the counselling communications regime is preserved at the leave stage under s 299D, not at the point of issuing subpoenas for the court's consideration.
  • Procedural applications of this kind, involving likely protected confidences, require separate representation of the complainant's interests, as occurred in this matter.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), ss 296, 297, 298, 299B, 299D

Cases
- KS v Veitch (No 2) [2012] NSWCCA 266; 84 NSWLR 172; 229 A Crim R 46