Citation: Rohan v R [2018] NSWCCA 89
Court: Court of Criminal Appeal, New South Wales
Date: 30 April 2018
Judges: Hoeben CJ at CL, Walton J, R A Hulme J
Background
The appellant (referred to by the pseudonym "Rohan") was due to face a special hearing in the District Court regarding allegations that he had sexually assaulted his niece between 2008 and 2009, when she was aged eight to ten. The proceedings were structured as a special hearing under the Mental Health (Forensic Provisions) Act 1990 (NSW) rather than an ordinary criminal trial.
Before the hearing commenced, the appellant sought leave in the District Court to issue subpoenas to four organisations that had provided counselling or related services to the complainant. Those organisations included a sexual assault service, a victims of crime body, and a child and youth mental health service. The basis for the application was the prospect that counselling records might contain material relevant to the complainant's credibility, particularly regarding whether she had disclosed or denied the alleged abuse during counselling sessions.
District Court Judge Syme refused to grant leave to issue the subpoenas. The appellant then sought leave to appeal that interlocutory refusal to the Court of Criminal Appeal under s 5F(3) of the Criminal Appeal Act 1912 (NSW). The Crown adopted a neutral stance; the complainant, who had standing under s 299A of the Criminal Procedure Act 1986 (NSW), was separately represented in both courts.
Legal Issues
- Whether the sexual assault communications privilege provisions in Division 2 of Part 5, Chapter 6 of the Criminal Procedure Act 1986 (NSW), specifically s 299B, applied to an application for leave to issue subpoenas under s 298(1).
- Whether the appellant had established that the documents sought would have "substantial probative value" under s 299D(1)(a), the threshold required for leave to be granted.
- Whether the primary judge erred in refusing to at least inspect the documents herself under s 299B(4) before deciding the leave application.
Decision
R A Hulme J (with whom Hoeben CJ at CL agreed) upheld the primary judge's refusal to grant leave. The central reason was that the material the appellant hoped to find in the counselling records lacked the substantial probative value required by s 299D(1)(a).
The appellant's argument rested on the possibility that the complainant had attended counselling but had not disclosed the alleged abuse to her counsellors. The Court found this line of argument was fundamentally undermined by s 294 of the Criminal Procedure Act, which requires a jury (or, in this context, the special hearing tribunal) to be warned that a complainant's failure to make a complaint is not necessarily significant. Evidence of non-disclosure during counselling would therefore carry little, if any, probative weight.
The Court also noted that the existing evidence already established the complainant had not disclosed the alleged abuse to any adult, counsellor, or police officer until late 2014. She had, however, written a note and told a school friend before that point. Against that backdrop, further evidence of non-disclosure during counselling could not add anything of substantial probative value.
On the question of whether the primary judge should have inspected the documents herself under s 299B(4), the Court held there was no basis to require such inspection. Without an adequate foundation that the records might contain substantially probative material, compelling production for judicial inspection was not warranted. Walton J added brief remarks indicating that, contrary to some reservation expressed by R A Hulme J, s 299B applied to applications for leave to issue subpoenas under s 298(1), consistent with the approach in KS v Veitch (No 2), though Walton J noted this point could await full argument in an appropriate future case.
Orders Made
• Leave to appeal granted
• Appeal dismissed
Key Takeaways
- Under s 299D(1)(a) of the Criminal Procedure Act 1986 (NSW), leave to compel production of documents recording protected confidences will not be granted unless the applicant establishes that the material would have substantial probative value. A speculative or theoretical prospect that documents might contain relevant material is insufficient.
- Where a complainant's alleged failure to disclose during counselling is the primary basis for seeking subpoenas, the statutory warning regime in s 294 (that a failure to complain is not significant) significantly diminishes any probative value that such non-disclosure evidence could carry.
- Evidence that would merely duplicate facts already established by existing evidence does not satisfy the substantial probative value threshold. Here, non-disclosure prior to 2014 was already before the court from other sources.
- The Court of Criminal Appeal confirmed, at least provisionally, that s 299B applies to applications for leave to issue subpoenas under s 298(1) of the Criminal Procedure Act, consistent with the earlier decision in KS v Veitch (No 2). Walton J noted the point had not been fully argued and could be revisited in a case where it arises squarely.
- In dismissing the appeal, the Court confirmed that judicial inspection of protected-confidence documents under s 299B(4) is not a step that must be taken as a matter of course. It is only appropriate where there is some adequate foundation suggesting the records may contain substantially probative material.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), ss 294, 296, 297, 298, 299A, 299B, 299D
- Criminal Appeal Act 1912 (NSW), s 5F(3)
- Mental Health (Forensic Provisions) Act 1990 (NSW), Pt 2
- Evidence Act 1995 (NSW), s 97
- Interpretation Act 1987 (NSW), s 35
- Courts and Crimes Legislation Further Amendment Act 2010 (NSW), Sch 1.1
Cases
- KS v Veitch (No 2) (2012) 84 NSWLR 172; [2012] NSWCCA 266
- ER v Khan [2015] NSWCCA 230
- NAR v PPC1 [2013] NSWCCA 25; (2013) 224 A Crim R 535
- PPC v Williams [2013] NSWCCA 286; (2013) 224 A Crim R 535
- R v Lockyer (1996) 89 A Crim R 457