Citation: JK v R [2025] NSWCCA 44
Court: NSW Court of Criminal Appeal
Date: 27 March 2025
Judges: Davies J; Sweeney J; Huggett J
Background
The applicant (the accused) faces trial in the District Court at Orange on five counts of sexual offences against his former wife. The charges span alleged conduct from 1994 through to 2019. A significant feature of the prosecution case is that the complainant's account of one of the 2019 incidents (the subject of count 4) evolved over multiple police statements, with an allegation of penile-vaginal intercourse appearing for the first time in a statement made in March 2022. The complainant herself had emailed the officer in charge in 2021 indicating she had "remembered more" about the 2019 incident "during therapy."
Against that background, the accused sought and obtained leave to issue a subpoena to the complainant's psychologist for records spanning 2019 to 2024. The complainant opposed the accused's application for access to those records, claiming sexual assault communication privilege under Division 2, Part 5 of Chapter 6 of the Criminal Procedure Act 1986 (NSW). That privilege protects "protected confidences" disclosed in the course of a counselling relationship from compelled disclosure in proceedings.
The trial judge, Musgrave DCJ, refused the accused's application for access to the documents without personally examining them, relying instead on the parties' submissions. The accused sought leave to appeal that interlocutory ruling to the Court of Criminal Appeal.
Legal Issues
- Whether the trial judge erred by failing to personally examine the subpoenaed documents before determining whether they had probative value.
- Whether the trial judge erred by not undertaking the balancing exercise required by s 299D(1)(c) of the Criminal Procedure Act 1986 (NSW) before refusing the accused access to the records.
- Whether, applying the correctness standard of review, the Court of Criminal Appeal should itself examine the documents and determine whether access ought to be granted.
Decision
The Court of Criminal Appeal found that Musgrave DCJ had committed an error of principle. Her Honour had resolved the question of whether the documents contained material of substantial probative value based solely on submissions from counsel, who had never seen the documents. The Court held that personally examining the records was the only proper means of determining whether they had probative value and, if so, whether that value was "substantial" for the purposes of s 299D(1)(a)-(c). Failure to do so meant her Honour did not comply with the statutory test.
The Court characterised this as an error with the "possibility or likelihood of causing substantial injustice" to the accused, because if any document did hold substantial probative value, that could not safely be left to consideration on a post-conviction appeal. This reasoning supported granting leave to appeal, even though the ultimate outcome did not favour the accused.
Applying the correctness standard of review confirmed in Steven Moore (a pseudonym) v The King [2024] HCA 30, the Court of Criminal Appeal examined the documents itself. After doing so, it was satisfied that the documents contain protected confidences and do not have probative value in relation to the two identified trial issues: the credibility and reliability of the complainant's account, and the "evolution" of her complaint, particularly the late disclosure of the count 4 allegation.
Because no document was found to have substantial probative value, the weighing exercise under s 299D(1)(c) did not arise. Accordingly, the Court could not grant the accused leave to access the records, and the appeal was dismissed despite the identified error below.
Orders Made
- Leave to appeal granted against the order of Musgrave DCJ of 18 February 2025 refusing the applicant leave to access documents produced under subpoena.
- Appeal dismissed.
Key Takeaways
- A trial judge determining a claim of sexual assault communication privilege under s 299D of the Criminal Procedure Act 1986 (NSW) must personally examine the subpoenaed documents. Relying solely on counsel's submissions about their likely contents is an error of principle.
- Under s 299D, the privilege analysis proceeds in stages: the court must first be satisfied the documents contain protected confidences, then assess whether they have substantial probative value, and only if that threshold is met engage in the weighing exercise in s 299D(1)(c). No substantial probative value means no access can be granted and no balancing exercise is required.
- The correctness standard of review applies to these interlocutory privilege decisions, as confirmed by the High Court in Steven Moore (a pseudonym) v The King [2024] HCA 30. This means the appellate court is not confined to asking whether the primary judge exercised a discretion wrongly; it may substitute its own assessment.
- In dismissing the appeal, the Court of Criminal Appeal noted that an error of the kind identified cannot safely be left to a post-conviction appeal, reinforcing why interlocutory review of privilege rulings in criminal proceedings serves an important protective function for both parties.
- An accused's subpoena seeking counselling records is not defeated merely because counsel concedes the records likely contain protected confidences. The statutory privilege regime requires the court to determine independently whether those records cross the threshold of substantial probative value before any claim of privilege operates to exclude access.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Procedure Act 1986 (NSW), ss 296, 298, 299B, 299D
Cases:
- House v The King [1936] HCA 40; 55 CLR 499
- Koschier v R (2024) 113 NSWLR 491; [2024] NSWCCA 24
- KS v Veitch (No 2) (2012) 84 NSWLR 172; [2012] NSWCCA 266
- PPC v Williams (2013) 238 A Crim R 25; [2013] NSWCCA 286
- Rohan v R [2018] NSWCCA 89
- Steven Moore (a pseudonym) v The King [2024] HCA 30; (2024) 419 ALR 169