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Court of Criminal Appeal 26 August 2015

ER v Khan

[2015] NSWCCA 230

Sexual offences
CRIMINAL LAW SEXUAL ASSAULT COMMUNICATIONS PRIVILEGE

Citation: ER v Khan [2015] NSWCCA 230
Court: Court of Criminal Appeal, NSW
Date: 26 August 2015
Judge(s): Hoeben CJ at CL, Hall J, Button J

Background

The respondent faced nine counts in the District Court relating to alleged sexual offences against a 15-year-old complainant on a single occasion in September 2014. The charges included aggravated sexual intercourse without consent and detention for sexual advantage. The complainant was the sole prosecution witness, and her credibility was central to the case.

The respondent issued two subpoenas seeking documents from the NSW Police Commissioner and the Department of Family and Community Services (FACS). The subpoenas expressly excluded any material protected by sexual assault communications privilege. The District Court judge (McClintock DCJ) found the subpoenas served a legitimate forensic purpose and required production of the documents.

The complainant, separately represented, applied for a determination that the produced documents were "protected confidences" under Division 2 of Part 5 of Chapter 6 of the Criminal Procedure Act 1986. McClintock DCJ examined each document individually, making 130 separate determinations across the Police and FACS materials. He found that none of the documents in dispute constituted protected counselling communications. The complainant applied to the Court of Criminal Appeal for leave to appeal those determinations under s 5F(3AA)(c) of the Criminal Appeal Act 1912.

  • Whether the trial judge erred in finding that documents held by FACS were not "protected confidences" within the meaning of Division 2, Part 5, Chapter 6 of the Criminal Procedure Act 1986
  • Whether the trial judge failed to give adequate reasons or failed to examine the relevant material when making those determinations
  • Whether affidavit evidence and a Schedule of Documents summarising the records was sufficient to establish that communications were protected counselling communications

Decision

Hall J (with Hoeben CJ at CL and Button J agreeing) dismissed the application for leave to appeal. The court found no error in the trial judge's characterisation of what constitutes a "protected confidence" under the Act, and no error in the methodology he applied when examining each document individually.

The court confirmed that a "protected confidence" under the Act is a "counselling communication": a communication made by a person seeking, or receiving, counselling from a recognised counsellor in a context of confidentiality relating to a sexual assault. A bare assertion of privilege, without more, is insufficient to establish that a document contains such a communication. The court found that affidavits asserting privilege and a schedule summarising documents did not, on their own, discharge the evidentiary burden of establishing that the documents were protected confidences.

In relation to one specific set of FACS documents (pages 74 to 77), the court observed that the trial judge's reasoning was not entirely complete. The documents identified a counsellor as the source of information drawn from a counselling session, which arguably warranted closer analysis. However, the Court of Criminal Appeal had not itself seen the documents, and acknowledged the trial judge may have had sufficient basis for his finding. Because no definitive conclusion of error could be reached, no ground for leave was established. The court drew attention to the issue solely so the District Court could reconsider it.

Orders Made

  • Application for leave to appeal dismissed.

Key Takeaways

  • A "protected confidence" under Division 2, Part 5, Chapter 6 of the Criminal Procedure Act 1986 is confined to counselling communications: communications made in the context of counselling a complainant of sexual assault in circumstances of confidentiality. Not every document in a FACS or police file will meet this definition.
  • Assertions of privilege, whether by affidavit or a document schedule, are insufficient on their own to establish that material constitutes a protected confidence. The evidentiary burden requires something more than a bare claim.
  • Where 130 documents are in dispute, the sentencing court must examine each document individually to determine whether it falls within the statutory definition. The Court of Criminal Appeal confirmed this as the correct approach.
  • No error was established in the trial judge's legal characterisation of "counselling communications" or in his document-by-document methodology, and the leave application was therefore dismissed.
  • Where a document attributes information to a counselling session, even if the document itself records a third-party contact rather than direct counselling, that connection may be relevant to a privilege claim and may warrant specific consideration by the court examining the material.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5F(3AA)(c)
- Criminal Procedure Act 1986 (NSW), Chapter 6, Part 5, Division 2 (Sexual assault communications privilege)
- Criminal Procedure Amendment (Sexual Assault Communications Privilege) Bill 2002
- Uniform Civil Procedure Rules 2005 (NSW)
- Crimes Act 1900 (NSW), ss 61J, 61M, 86

Cases
- Bailey v Department of Land and Water Conservation [2009] NSWCA 100; (2009) 74 NSWLR 333
- Barnes v Federal Commissioner of Taxation [2007] FCAFC 88
- Kennedy v Wallace (2004) 142 FCR 185; [2004] FCAFC 337
- KS v Veitch (No 2) [2012] NSWCCA 266; (2012) 84 NSWLR 172
- NAR v PPC1 [2013] NSWCCA 25
- PPC v Williams [2013] NSWCCA 286