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District Court 26 June 2014

R v Guerrera, Nicolino

[2014] NSWDC 347

Sexual offences
CRIMINAL LAW CONFIDENTIAL COMMUNICATIONS PRIVILEGE MARKARIAN [2012] NSWDC 197 BRUCE RUSSELL [2013] NSWDC 129

Citation: R v Guerrera, Nicolino [2014] NSWDC 347
Court: District Court of NSW
Date: 26 June 2014
Judge: Tupman DCJ

Background

The accused faced trial on 13 counts of sexual assault against a complainant, involving alleged offences occurring between 1982 and 1983 when the complainant was aged between seven and nine. The charges included multiple counts of indecent assault, an act of indecency, and carnal knowledge, with two charges carrying a maximum penalty of life imprisonment.

In preparation for trial, the defence issued subpoenas to three hospitals seeking the complainant's general medical records. The subpoenas were not drafted to target sexual assault counselling records specifically, and there was no prior indication that such material would be found. After the Crown Prosecutor reviewed the produced documents, concerns arose that some records may constitute protected confidential communications under the sexual assault communications privilege regime in the Criminal Procedure Act 1986.

The documents were returned to the Court, the complainant was represented by a solicitor as the protected confider, and the Court was asked to determine whether the accused (and the Crown) should be granted access to any of the produced material.

  • Whether the subpoenas, issued without leave in breach of s 298 of the Criminal Procedure Act 1986, should be set aside, or whether the irregularity could be disregarded when assessing access
  • Whether the documents produced by the three hospitals fell within the definition of "confidential communications" and "counsellor" under Part 5 Division 2 of the Criminal Procedure Act 1986
  • Whether the competing public interests, including the accused's right to a fair trial and the protection of sexual assault counselling, weighed in favour of granting access under s 299D

Decision

Procedural irregularity in issuing subpoenas: The court acknowledged that s 298 of the Criminal Procedure Act 1986 prohibits the issue of subpoenas seeking protected confidence documents without prior leave. Following the Court of Criminal Appeal's approach in KS v Veitch (No 2) [2012] NSWCCA 266, Tupman DCJ held that because the test for granting leave and the test for granting access are the same, the irregularity could be disregarded and the access question determined on its merits.

Definition of "counsellor" and scope of the privilege: The court declined to follow the broad definition of "counsellor" adopted in R v Markarian [2012] NSWDC 197, preferring instead the narrower approach taken in R v Bruce Russell [2013] NSWDC 129. On that basis, not all of the produced records fell within the definition of confidential communications for the purposes of the privilege. Two groups of documents were found to fall outside the statutory provisions entirely.

Balancing public interests for the remaining documents: For the three portions of records that did qualify as protected confidences, the court applied the balancing exercise required by s 299D. The court found those documents to be substantially probative, bearing directly on the complainant's credibility, reliability and accuracy, and not available from any other source. There was no evidence of ongoing sexual assault counselling, no evidence of harm likely to flow from disclosure, and no countervailing public interest sufficient to outweigh the accused's right to a fair trial on serious charges. Access was granted to those three portions.

Orders Made

  • Leave granted under s 299D of the Criminal Procedure Act 1986 to access two identified portions from the Cumberland Hospital records and one portion from the Sydney South Pacific Hospital records
  • The remaining documents were found not to fall within Part 5 Division 2 of the Criminal Procedure Act 1986 and were treated as outside the privilege regime

Key Takeaways

  • The District Court followed the narrower construction of "counsellor" adopted in R v Bruce Russell [2013] NSWDC 129, and expressly declined to follow the broader approach in R v Markarian [2012] NSWDC 197, confirming that the definition of who qualifies as a counsellor under the sexual assault communications privilege is not settled uniformly across the District Court.
  • Where a subpoena seeking hospital records is issued without leave in breach of s 298, a trial court may disregard the procedural irregularity and proceed directly to determine whether access should be granted, applying the same test as would apply to a leave application.
  • Under s 299D, the absence of ongoing counselling and the absence of evidence of harm to the complainant are relevant factors weighing against confidentiality interests in the balancing exercise.
  • Substantial probative value, particularly on issues of complainant credibility and reliability going to the heart of the Crown's case, can justify granting access to records that would otherwise be protected confidences.
  • The purpose of the sexual assault communications privilege, as the court described it, is to protect complainants from intrusion during sexual assault counselling and to preserve the effectiveness of that counselling in the context of criminal proceedings.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61E, 67
- Criminal Procedure Act 1986 (NSW), Part 5 Division 2; ss 296, 298, 299D
- Evidence Act 1995 (NSW), s 108

Cases:
- KS v Veitch (No 2) [2012] NSWCCA 266
- R v Markarian [2012] NSWDC 197
- R v Bruce Russell [2013] NSWDC 129