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Court of Criminal Appeal 10 July 2020

R v Bonanno; ex parte Protected Confider

[2020] NSWCCA 156

Sexual offencesPublic order & justice offences

Citation: R v Bonanno; ex parte Protected Confider [2020] NSWCCA 156
Court: NSW Court of Criminal Appeal
Date: 10 July 2020
Judge(s): Bathurst CJ; Hoeben CJ at CL; Adamson J

Background

An accused facing multiple sexual offence charges in the District Court sought to subpoena a psychologist for documents relating to counselling the psychologist had provided to the complainant. On 1 June 2020, the trial judge (Syme DCJ) purported to grant leave for the subpoena to be issued and also granted the complainant (referred to throughout as the "protected confider") access to the documents once produced.

The protected confider applied to the Court of Criminal Appeal for leave to appeal that decision under s 5F of the Criminal Appeal Act 1912 (NSW). The grounds were that the trial judge had not complied with the notice and leave requirements in ss 299C and 299D of the Criminal Procedure Act 1986 (NSW), which govern sexual assault communications privilege.

Notably, both the Crown and the accused accepted that the orders should not have been made and supported the appeal being allowed.

  • Whether the trial judge was required to comply with the notice provisions in s 299C of the Criminal Procedure Act 1986 (NSW) before granting leave to issue a subpoena for documents containing protected confidences.
  • Whether the trial judge was required to apply the leave criteria in s 299D before granting such leave.
  • Whether the subpoena should be set aside for failure to comply with those provisions.

Decision

Adamson J (with whom Bathurst CJ and Hoeben CJ at CL agreed) found that the trial judge had not applied ss 299C or 299D at all. From the transcript, the trial judge appeared to have been under the mistaken belief that a subpoena could be issued without regard to those provisions. That belief was wrong: the trial judge was bound by the Act and failed to comply with it.

Section 299C requires written notice to be given to each party and to each relevant protected confider before leave can be granted, with a minimum 14-day waiting period after notice is given (subject to any shorter period fixed by the court). Section 299D then requires the court to be satisfied of three cumulative matters before granting leave, including that the documents will have substantial probative value, that equivalent material is not otherwise available, and that the public interest in admitting the evidence substantially outweighs the public interest in preserving confidentiality and protecting the protected confider from harm.

Because neither provision was complied with, the subpoena had been unlawfully issued and was required to be set aside. Adamson J also noted that counsel bears an obligation to draw relevant legislation to a judge's attention and explain how it applies. Failure to comply with these provisions produces an error of law, risks a mistrial, and can cause substantial harm to protected confiders.

Orders Made

  • The subpoena issued by Syme DCJ on 1 June 2020 ordering production of documents pertaining to counselling with the complainant was set aside.
  • Leave to the protected confider to appeal under s 5F of the Criminal Appeal Act 1912 (NSW) was granted.
  • The appeal was allowed.

Key Takeaways

  • Under Division 2 of Part 5 of Chapter 6 of the Criminal Procedure Act 1986 (NSW), a court cannot grant leave to issue a subpoena for documents containing protected confidences without first following the mandatory notice procedure in s 299C, including a minimum 14-day notice period.
  • Section 299D imposes a three-part cumulative test that the court must apply before granting leave: substantial probative value, unavailability of equivalent material, and a public interest balancing exercise that accounts for the specific factors listed in s 299D(2).
  • A protected confider has automatic standing, by right and not by leave, to appear in criminal proceedings where production of documents disclosing a protected confidence is sought.
  • Non-compliance with these statutory requirements renders the grant of leave and any resulting subpoena unlawful, and the subpoena must be set aside.
  • The Court of Criminal Appeal observed that both the court and counsel share responsibility for identifying and applying relevant legislation, and that unchecked errors of law risk a mistrial and can cause substantial harm to protected confiders.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Procedure Act 1986 (NSW), ss 295, 296, 298A, 299, 299A, 299C, 299D
- Courts and Crimes Legislation Further Amendment Act 2010 (NSW)

Cases: No cases were cited in the judgment.