Citation: R v Spiteri-Ahern; R v Barber; R v Zraika (No 3) [2017] NSWSC 1277
Court: Supreme Court of New South Wales
Date: 31 August 2017
Judge(s): Rothman J
Background
This decision arose from criminal proceedings involving three accused. The legal representatives of one of the accused, Ms Spiteri-Ahern, issued subpoenas seeking medical expert reports and records relating to a witness in the case.
The Crown raised a concern that some of the subpoenaed documents might attract a statutory privilege protecting confidential communications made by victims of sexual assault. The privilege regime in question is found in Part 5, Division 2 of the Criminal Procedure Act 1986 (NSW), beginning at section 295.
The Court was asked to consider whether the subpoenas should be permitted to issue at all, given the possibility that the sought documents might be "protected confidences" within the meaning of the legislation.
Legal Issues
- Whether the subpoenas should be allowed to issue, given the Crown's suggestion that the documents sought might be protected by the counselling communication privilege under Division 2, Part 5 of the Criminal Procedure Act 1986
- Whether the Court had sufficient information to form even a preliminary view that the documents might constitute "protected confidences" under section 296 of the Act
- What the appropriate procedural mechanism was for determining whether the privilege applied
Decision
Rothman J observed that a "protected confidence" under section 296 of the Criminal Procedure Act 1986 is defined to include a counselling communication made in confidence by or to a counsellor. The privilege provisions are triggered only once the Court, or a party (under section 299C), has formed a view that a document is arguably a protected confidence.
At the time of the application, the Court had no evidence about the witness's history and no access to the subpoenaed documents themselves. Neither the Court nor the legal representatives of the accused knew whether any of the sought records even arguably fell within the protected confidence category. On that basis, the Court could not form a preliminary view sufficient to enliven the privilege regime.
Rothman J resolved the impasse by allowing the subpoenas to issue, but with an important procedural safeguard built in. Once the documents were returned to the Court, the Court would examine them under section 299B of the Act to determine whether they arguably fell within the category of protected confidence. If they did, the witness and other relevant parties would receive appropriate notice before any further steps were taken.
Orders Made
- The subpoenas were permitted to issue.
- Upon return of the subpoenaed documents to the Court, the Court would determine under section 299B of the Criminal Procedure Act 1986 whether the documents arguably constituted protected confidences.
- If the documents were found arguably to be protected confidences, appropriate notice was to be given to the witness and other relevant parties.
Key Takeaways
- Under Part 5, Division 2 of the Criminal Procedure Act 1986, the court's ability to intervene on privilege grounds depends on it first being able to form a view, even preliminarily, that a document is arguably a "protected confidence" as defined in section 296.
- Where neither the court nor the issuing party has any information about a witness's history or the nature of the documents sought, the privilege regime cannot be engaged at the point of issue, and the subpoena may proceed.
- Section 299B provides a procedural mechanism allowing the Supreme Court to inspect returned documents and determine whether they arguably attract the counselling communication privilege before the documents are produced or accessed by parties.
- The decision illustrates that the statutory privilege for sexual assault counselling communications operates as a gatekeeping process: the court, not the parties, examines the documents at the threshold stage and triggers notice obligations only if an arguable case for privilege is identified.
- Allowing a subpoena to issue does not resolve the privilege question; the protection for potentially sensitive communications is preserved through the court's supervisory role on return of the documents.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), Part 5, Division 2, ss 295, 296, 299B, 299C
Cases cited: No cases were cited in the judgment.