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Court of Criminal Appeal 18 July 2019

Marwan v Director of Public Prosecutions

[2019] NSWCCA 161

Sexual offences
CRIMINAL LAW STAY OF PROCEEDINGS TEMPORARY STAY MAIN ISSUE AT TRIAL CONSENT OFF MEDICATION FOR 4/12 SINCE > AUSTRALIA”

Citation: Marwan v Director of Public Prosecutions [2019] NSWCCA 161
Court: NSW Court of Criminal Appeal
Date: 18 July 2019
Judges: Leeming JA at [1]; R A Hulme J at [78]; Adamson J at [79]

Background

The applicant faced a single charge of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW). The alleged offence occurred in a Sydney laneway in the early hours of 10 November 2017. The complainant, an 18-year-old visiting from the United Kingdom, and the applicant had engaged in some consensual sexual activity before, on the Crown's case, the complainant withdrew her consent.

An ambulance officer who attended the complainant shortly after the incident recorded a brief notation on the patient form indicating a history of anxiety and depression, and that the complainant had been off medication for approximately four months since arriving in Australia. That notation, along with a description by the complainant's half-brother of her appearing to suffer something resembling a panic attack after the incident, formed the basis of the applicant's application for a stay of proceedings.

The applicant sought a temporary stay of the trial pending the prosecution making inquiries to obtain the complainant's mental health records from the United Kingdom. The primary judge refused the stay following a two-day hearing. The applicant then sought leave to appeal to the Court of Criminal Appeal, with the trial listed to commence within days.

  • Whether the prosecution's duty of disclosure extended, in the circumstances, to a positive duty to make inquiries about the complainant's mental health history located overseas.
  • Whether the refusal of a temporary stay pending those inquiries was attended by error.
  • What evidentiary onus applies to an applicant seeking a temporary stay on grounds of non-disclosure.
  • Whether the information revealed by the ambulance officer's notation was sufficient to trigger any obligation on the prosecution to seek the complainant's UK mental health records.

Decision

Leeming JA (with whom Hulme J agreed) acknowledged that the case raised novel issues. No authority had been identified where a stay was actually granted pending inquiries of the kind sought, particularly where those inquiries involved sensitive personal information held overseas. While the parties accepted that in an appropriate case the duty of disclosure could extend to a positive duty to make inquiries, the critical question was whether this was such a case.

Leeming JA analysed the ambulance officer's notation and concluded that it did not give rise to any obligation on the prosecution to take further investigative steps. The applicant contended that the complainant's mental health history might provide an alternative explanation for her apparent distress after the alleged assault, and that the defence had been denied a legitimate forensic opportunity. Leeming JA rejected that reasoning. The complaint had been immediate, the fact of sexual intercourse was not in dispute, and any prior diagnosis of anxiety or depression, or the temporary cessation of medication, did not bear sufficiently on the complainant's credibility or reliability to require the prosecution to pursue overseas records.

Adamson J expressed the point more narrowly, declining to endorse the full scope of Leeming JA's analysis on some issues. Her Honour was satisfied it was sufficient to conclude that the Director had no duty to seek the complainant's mental health records in the first place. Had such records come into the prosecution's possession, disclosure would have been required, but the threshold for a duty to make active inquiries was not met on these facts.

The Court unanimously granted leave to appeal but dismissed the appeal. The dispositive conclusion of the primary judge was substantially the same: the prosecution was not obliged to make inquiries of the complainant's UK mental health history, and no unfairness sufficient to warrant a stay had been established.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that while the prosecution's duty of disclosure can, in appropriate circumstances, extend to a positive duty to make inquiries, that duty is not engaged simply because material in the Crown brief hints at a complainant's prior mental health history.
  • A duty to make inquiries arises only in an "appropriate case." The threshold is not satisfied merely because a defendant identifies a hypothetical forensic advantage that further records might yield.
  • Where relevant records would have been disclosable had the prosecution obtained them, that obligation to disclose does not automatically create an obligation to seek those records out, particularly where they are held overseas and concern sensitive personal information.
  • In dismissing the appeal, the Court noted that the immediacy of the complaint and the concession that sexual intercourse had occurred significantly reduced the weight of any connection between the complainant's mental health history and the issues at trial.
  • Adamson J's separate concurrence illustrates that the members of the Court reached the same outcome by different routes, and that the broader propositions in Leeming JA's reasons should not necessarily be taken as settled law on all points.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61I
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Procedure Act 1986 (NSW), Chapter 6, Part 5, Division 2
- Director of Public Prosecutions Act 1986 (NSW), s 14
- Legal Profession Uniform Conduct (Barristers) Rules 2015, rr 87, 88, 89, 90

Cases:
- Mallard v The Queen (2005) 224 CLR 125; [2005] HCA 68
- R v Seller; R v McCarthy (2015) 89 NSWLR 155; [2015] NSWCCA 76
- Gould v Director of Public Prosecutions (Cth) [2018] NSWCCA 109; 359 ALR 142
- Strickland v Commonwealth Director of Public Prosecutions [2018] HCA 53; 93 ALJR 1
- R v Lipton (2011) 82 NSWLR 123; [2011] NSWCCA 247
- R v Reardon (No 2) (2004) 60 NSWLR 454; [2004] NSWCCA 197
- Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57
- R v Brown (Winston) [1998] AC 367
- AJ v R (2011) 32 VR 614; [2011] VSCA 215
- Leiper v R [2018] NSWCCA 117
- R v Grey [2000] NSWCCA 46; 111 A Crim R 314