AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 20 December 2018

PPC v Stylianou

[2018] NSWCCA 300

Sexual offences
CRIME SEXUAL ASSAULT COMMUNICATIONS PRIVILEGE INTERLOCUTORY APPEAL INTERLOCUTORY APPEAL SEXUAL ASSAULT COMMUNICATIONS PRIVILEGE “PARTY”

Citation: PPC v Stylianou [2018] NSWCCA 300
Court: NSW Court of Criminal Appeal
Date: 20 December 2018
Judge(s): Macfarlan JA at [1]; Rothman J at [40]; R A Hulme J at [71]

Background

The respondent faced trial in the District Court on three charges of sexual intercourse with a child under the age of 10 years, contrary to s 66A of the Crimes Act 1900 (NSW). In the years following the alleged offences, the complainant (referred to throughout as the "Principal Protected Confider" or "PPC") had consulted several psychologists, and those consultation records were the subject of subpoenas issued by the respondent.

In October 2018, Yehia SC DCJ granted leave under s 298(1) of the Criminal Procedure Act 1986 (NSW) (the CP Act) for the respondent to issue subpoenas compelling the psychologists and their clinics to produce counselling records. The documents were produced to the Court without the documents themselves being inspected at the time leave was granted.

After production, the respondent sought access to the documents before Berman SC DCJ. His Honour concluded he was precluded by the CP Act from exercising any independent discretion over whether each document should actually be made available to the respondent, and ordered access on the basis that it would be "consistent with" the earlier grant of leave. Describing this as a "strange outcome," his Honour expressed the view that it was incompatible with the legislation's purpose. The PPC then sought leave to appeal to the Court of Criminal Appeal against Berman DCJ's order.

  • Whether the PPC had standing under s 5F of the Criminal Appeal Act 1912 (NSW) to seek leave to appeal against the District Court's interlocutory order granting access to protected counselling records.
  • Whether Berman DCJ was correct to conclude that the CP Act precluded him from exercising an independent discretion, document by document, as to whether access should be granted to the respondent once subpoenas had already been issued under leave granted by Yehia DCJ.
  • How Division 2 of Part 5 of Chapter 6 of the CP Act operates in practice, particularly the relationship between the grant of leave to issue a subpoena under s 298(1) and the subsequent question of access to produced documents under s 299B.

Decision

On the question of standing, the Court found that the PPC was a "party" within the meaning of s 5F of the Criminal Appeal Act 1912 for the purposes of seeking leave to appeal. The Court reasoned that the term "criminal proceedings" in s 5F should be construed to include interlocutory proceedings, including subpoena proceedings, given that the CP Act's own definition of "criminal proceedings" in s 295 expressly encompasses interlocutory proceedings. Treating the PPC as a party to those proceedings was also consistent with s 299A of the CP Act, which expressly confers on a protected confider who is not otherwise a party the right to appear when documents or evidence disclosing a protected confidence are sought. The Crown supported the PPC's standing argument; the respondent opposed it.

On the substantive question, the Court held that Berman DCJ was wrong to conclude that the CP Act stripped him of any independent discretion once Yehia DCJ had granted leave to issue the subpoenas. The two stages of the process, obtaining leave to subpoena and then obtaining access to produced documents, are distinct. At the access stage, s 299B of the CP Act requires the court to consider each document and imposes real constraints: a document may only be made available to a party where it has been determined not to record a protected confidence, or where leave has been granted and making the document available is consistent with that leave. The Court confirmed that the grant of leave to issue a subpoena does not automatically translate into unconditional access to all documents produced in response.

The Court also noted that because Yehia DCJ had not inspected the documents when granting leave, the second-stage consideration of the documents by the District Court was not only permissible but necessary. Berman DCJ's view that he was bound simply to implement Yehia DCJ's earlier order without independent scrutiny of each document misread the statutory scheme.

Orders Made

  • Leave granted to the PPC to appeal against the order of Berman DCJ made on 31 October 2018.
  • Appeal allowed.
  • The order of Berman DCJ set aside.
  • Proceedings remitted to the District Court to be dealt with according to law.

Key Takeaways

  • A Principal Protected Confider under Division 2 of Part 5 of Chapter 6 of the CP Act has standing to seek leave to appeal under s 5F of the Criminal Appeal Act 1912 as a "party" to interlocutory proceedings, including subpoena proceedings, within a criminal trial.

  • The grant of leave under s 298(1) of the CP Act to issue a subpoena for counselling records is a distinct step from any subsequent order granting the accused access to documents produced in response. These two stages carry separate requirements under the statutory scheme.

  • Under s 299B of the CP Act, a court retains an independent obligation to consider each produced document before making it available to a party. A prior grant of leave to subpoena does not bypass that obligation.

  • Where the court granting leave to subpoena did not have access to the actual documents at the time of the leave decision, the subsequent court conducting the access inquiry must itself examine the documents. Simply asking whether disclosure is "consistent with" the earlier leave order is insufficient.

  • Sections 5F of the Criminal Appeal Act 1912 and Division 2 of Part 5 of Chapter 6 of the CP Act are in pari materia (that is, they operate in the same legal field), and the term "criminal proceedings" in s 5F is to be read consistently with the broader definition in s 295 of the CP Act, which includes interlocutory proceedings.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66A
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Procedure Act 1986 (NSW), ss 222, 228, 295, 296, 298, 299A, 299B, 299C, 299D, 306
- Uniform Civil Procedure Rules 2005 (NSW), r 33.4
- Courts and Crimes Legislation Further Amendment Act 2010 (NSW)
- District Court Rules 1973 (NSW), Pt 53

Cases:
- KS v Veitch [2012] NSWCCA 186
- KS v Veitch (No 2) (2012) 84 NSWLR 172; [2012] NSWCCA 266
- NAR v PPC1 [2013] NSWCCA 25; (2013) 224 A Crim R 535
- PPC v Williams [2013] NSWCCA 286; (2013) 238 A Crim R 25
- Tran v R [2017] NSWCCA 93
- Grassby v The Queen (1989) 168 CLR 1; [1989] HCA 45
- Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
- National Employers' Mutual General Insurance Association Ltd v Waind [1978] 1 NSWLR 372
- Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19
- Gas & Fuel Corporation Superannuation Fund v Saunders (1994) 52 FCR 48