Citation: R v RT (No 1) [2024] NSWDC 116
Court: District Court of New South Wales
Date: 15 April 2024
Judge: Sutherland SC DCJ
Background
The accused faces six counts on indictment alleging historical sexual assaults committed against his sister when she was between 10 and 14 years of age, approximately 30 to 34 years ago. The complainant had separately alleged that another brother also sexually assaulted her during a similar period. A psychologist had consulted with the complainant in relation to these allegations, and the complainant had also produced a document referred to as a "Monograph" in which she alluded to sexual activity with each of her brothers.
Before the jury trial commenced, the accused brought two pre-trial applications. The first sought leave to issue a subpoena to the psychologist for clinical notes and records. The second sought leave to cross-examine the complainant about alleged sexual activity with the other brother.
Legal Issues
- Whether leave should be granted under s 299D of the Criminal Procedure Act 1986 (NSW) to issue a subpoena to the complainant's psychologist for counselling records, which were prima facie protected confidences.
- Whether, and how, a court can inspect protected documents before determining whether to grant leave to issue a subpoena for those documents.
- Whether leave should be granted under s 294CB(4) of the Criminal Procedure Act 1986 (NSW) to cross-examine the complainant about alleged sexual activity with another brother, being evidence related to the complainant's prior sexual experience.
Decision
Subpoena application and inspection of documents
The court navigated a recognised procedural tension: a court must be satisfied that documents have substantial probative value before granting leave under s 299D(1)(a), yet without the documents in hand, that assessment is difficult. Drawing on KS v Veitch (No 2) and Rohan v R, the court accepted that s 299B(4) empowers a court to order production of documents to itself for the purpose of considering a leave application, even if that reasoning involves a degree of circularity noted in Rohan. The court proceeded on that basis and inspected the counselling notes.
Having examined the notes, the court was not satisfied they had substantial probative value in relation to the allegations on the indictment. The court found that while no other equivalent documents were available, the public interest in preserving the confidentiality of the counselling relationship and protecting the complainant from harm was not substantially outweighed by any public interest in admitting the material. The court took into account a confidential affidavit filed on the complainant's behalf. Accordingly, leave to issue the subpoena was refused, and production of the documents to the parties was also refused.
Cross-examination on prior sexual experience
The court turned to the application under s 294CB(4), which requires leave before evidence about a complainant's prior sexual experience can be adduced in sexual offence proceedings. The court identified the proposed cross-examination as going to the commencement of sexual activity with each brother, the similarity of conduct alleged between them, the complainant's inability to identify which brother performed particular acts, and the duration of alleged sexual activity with each. Having regard to the complainant's own references to sexual activity with both brothers in the Monograph, the court was satisfied that the probative value of this evidence outweighed the distress, humiliation or embarrassment the complainant might suffer from its admission. Leave to cross-examine on these matters was granted.
Orders Made
- Leave to issue the subpoena to the psychologist refused.
- Leave for production of the counselling documents to the parties refused.
- Leave granted to cross-examine the complainant under s 294CB(4) on specified matters relating to alleged sexual activity with the other brother.
Key Takeaways
- Under ss 298 and 299D of the Criminal Procedure Act 1986 (NSW), a court cannot grant leave to issue a subpoena for protected counselling communications unless all three cumulative criteria in s 299D(1) are satisfied: substantial probative value, unavailability of other equivalent documents, and the public interest in confidentiality being substantially outweighed.
- The District Court followed the approach recognised in KS v Veitch (No 2) and acknowledged in Rohan v R: s 299B(4) permits a court to order production of documents to itself to facilitate the leave determination, even where the subpoena has not yet been formally issued.
- Inspecting the documents did not automatically lead to leave being granted. The court's substantive refusal turned on an independent finding that the counselling notes lacked substantial probative value and that the confidentiality interests were not substantially outweighed.
- Leave under s 294CB(4) to cross-examine a complainant on prior sexual experience with a third party may be granted where the complainant has herself referred to that sexual activity in documents tendered in proceedings, and the subject matter bears directly on contested issues such as timing, similarity of conduct, and attribution of specific acts.
- A confidential affidavit from the complainant about potential harm from disclosure is a recognised and relevant consideration in the s 299D balancing exercise, and the court is prohibited from disclosing that affidavit to the other parties.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW)
- Criminal Procedure Act 1986 (NSW), ss 294CB, 298, 299B, 299D
Cases
- KS v Veitch (No 2) (2012) 84 NSWLR 172; [2012] NSWCCA 266
- NAR v PPC1 [2013] NSWCCA 25; (2013) 224 A Crim R 535
- Rohan v R [2018] NSWCCA 89
- Jackmain (a pseudonym) v R (2020) 102 NSWLR 847; [2020] NSWCCA 150
- Valentine v R [2023] NSWCCA 43
- M v R (1993) 67 A Crim R 549
- R v Burton [2013] NSWCCA 335; (2013) 237 A Crim R 238
- R v White (1989) 18 NSWLR 332
- R v Bernthaler, NSWCCA (unreported, 17 December 1993)