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Court of Criminal Appeal 23 April 2025

MF v Principal protected confider; MF v The King

[2025] NSWCCA 55

Sexual offences
CRIMINAL APPEALS INTERLOCUTORY JUDGMENT OR ORDERS SEXUAL ASSAULT COMMUNICATIONS PRIVILEGE LEAVE TO ISSUE SUBPOENA STANDARD OF REVIEW “HOUSE ERROR” OR “CORRECTNESS STANDARD”

Citation: MF v Principal protected confider; MF v The King [2025] NSWCCA 55
Court: Court of Criminal Appeal
Date: 23 April 2025
Judge(s): Stern JA, Hamill J, McNaughton J

Background

The appellant (referred to by the pseudonym MF) faced trial in the District Court on 21 counts of child sexual assault offences. Fourteen of those counts related to a child complainant, referred to as XY, who has a rare genetic condition, Autism Spectrum Disorder, and a moderate intellectual disability. MF's lawyers sought leave to issue two subpoenas for documents that would include protected confidences under the sexual assault communications privilege regime in Division 2, Part 5 of the Criminal Procedure Act 1986 (NSW). The documents included counselling records held by a medical centre and police-held records related to XY's treatment.

The application came before Judge Bright in the District Court at Gosford in December 2024. Her Honour declined to grant leave to issue the subpoenas and made no orders to facilitate inspection of the documents. MF applied to the Court of Criminal Appeal for leave to appeal against those orders under s 5F of the Criminal Appeal Act 1912 (NSW).

The case had particular urgency because XY was scheduled to give pre-recorded evidence on 5 May 2025, with trial commencing on 12 May 2025. The Court also noted the significance of a recent decision in similar proceedings, JK v R [2025] NSWCCA 44, which had been decided after Judge Bright's orders.

Legal Issues

  • Whether time for filing the notice of appeal should be extended beyond the 14-day period under reg 5B of the Criminal Appeal Rules 1952 (NSW)
  • What standard of appellate review applies to each ground of appeal: the correctness standard or the House v The King test for discretionary decisions
  • What the word "will" in s 299D(1)(a) requires when assessing whether material will have "substantial probative value"
  • Whether the primary judge erred in applying the s 299D(1)(a) test to the separate power under s 299B(1) and (4) to inspect documents
  • Whether the primary judge took into account irrelevant considerations (including jury directions and the "burden" of inspection)
  • Whether the primary judge erred in failing to exercise the available powers under s 299B to facilitate inspection of the documents
  • Whether the type of therapy provided to a protected confider can itself constitute a protected confidence under s 296

Decision

Preliminary: Extension of time

The notice of appeal was filed 16 days after the primary judge's orders, two days beyond the 14-day limit in reg 5B. The Court accepted the explanation that the delay resulted from the Christmas period, public holidays, and a misapprehension about the filing deadline. Taking into account the importance and merit of the grounds raised, the Court extended time to the date of filing (at [8]).

Standard of review

The Court confirmed that the standard of review varies depending on the nature of each ground. The correctness standard applied to ground 1. Ground 2, though framed as a challenge to adequacy of reasons, raised House v The King errors in substance. Grounds 3 and 4 involved a mixture of an evaluative judgment permitting only one correct legal answer and a genuine discretion. The Court found that any difference in standard would not affect the outcome in this case (at [11]-[15]).

The meaning of "will have substantial probative value" in s 299D

The Court clarified the threshold in s 299D(1)(a). The word "will" does not demand certainty or a "realistic inevitability" that the material will have substantial probative value, but it clearly requires more than a possibility or a balance of probabilities. The Court reached this interpretation by reference to context, including that leave may be sought at an early pre-trial stage where certainty is difficult to attain (at [32]).

Ground 1: Whether the primary judge applied the wrong test

The Court found insufficient evidence before it to determine conclusively whether the primary judge erred in finding the material lacked substantial probative value under s 299D(1)(a), because the documents themselves had not been inspected (at [83]).

Ground 2: Irrelevant considerations in the primary judge's reasoning

Ground 2(b): The Court upheld this ground. The directions that would be given to the jury under ss 293A and 294 of the Criminal Procedure Act about delay in complaint and differences in account are not relevant to assessing whether material will have substantial probative value. Probative value is assessed by taking evidence at its highest, and the need for a jury direction does not diminish an assessment of the extent to which the evidence, if accepted, bears on a fact in issue (at [79], [85]).

Ground 2(a): The Court did not reach a concluded view, but noted that the applicant's intention to call a psychologist as an expert witness was a salient and material consideration in circumstances where the prosecution also intended to call an expert witness (at [80], [85]).

Ground 3: Balancing of public interests under s 299D(1)(c)

The Court found it was not possible to engage with the required balancing exercise without knowing the contents of the documents. No final conclusion on this ground was necessary given the outcome on grounds 2(b) and 4 (at [84]).

Ground 4: Failure to exercise the power under s 299B

The Court upheld ground 4. Section 299B(1) gives a court the power to consider documents in order to identify protected confidences and evaluate their probative value. Section 299B(4) provides broad powers to order production to facilitate that consideration. Neither the requirement for leave under s 298 nor the s 299D(1)(a) test applies to the exercise of these powers. The primary judge erred by effectively applying the substantive leave test to the preliminary question of whether to inspect the documents at all (at [72]-[77]).

The Court also found that the primary judge's slight misquotation of Rohan v R compounded this error by framing the s 299B inspection power as subject to the same "substantial probative value" threshold as the leave test in s 299D (at [76]).

The Court noted that inspection is not required in every case involving a complainant who has received counselling, but in this case, given the centrality of XY's credibility and reliability, the evolution of her disclosures over multiple interviews, and the timing of the later complaints relative to the commencement of counselling, it was not possible to assess probative value or conduct the s 299D(1)(c) balancing exercise without first examining the documents (at [81]-[82]).

Representation of protected confiders lacking capacity

Mr Spohr raised as a preliminary issue whether the legislation adequately addresses representation of a protected confider who lacks capacity to give instructions. The Court acknowledged the importance of those questions but declined to address them. The issue did not arise for determination on the facts; XY was represented by a solicitor who proceeded on a "best interests" model without objection. The Court noted that many of the matters raised were questions of ethics, and that it does not provide advisory opinions (at [36]-[40]).

Whether the type of therapy constitutes a protected confidence

The Court made no formal ruling on whether disclosure of the type of therapy provided to XY is itself a protected confidence under s 296. Resolution of the issue was not required to decide the appeal. The Court made several observations, noting that whether the type of therapy is captured by s 296 will be highly fact-specific and will depend on the source of the information in each case (at [43]-[52]).

Orders Made

  • Time for filing the notice of appeal extended to the date of filing.
  • Leave to appeal granted; appeal allowed.
  • Orders made in the District Court on 11 December 2024 vacated.
  • Pursuant to s 299B(4), NSW Police ordered to produce to the District Court at Gosford by 29 April 2025 (or such date as the District Court orders): an unredacted copy of RO's statement dated 21 February 2024, and unredacted copies of any medical records of Grace Medical Centre in police possession relating to XY.
  • Pursuant to s 299B(4), Grace Medical Centre ordered to produce to the District Court at Gosford by 29 April 2025 (or such date as the District Court orders): correspondence from the treating psychologist or counsellor "Katie" relating to XY; documents containing details of complaints made by XY to "Katie"; documents containing details of the type of treatment provided or being provided by "Katie" to XY.
  • Matter remitted to the District Court for mention on 29 April 2025 to be dealt with according to law by a differently constituted District Court.
  • The Registrar of the Court of Criminal Appeal directed to take action to give effect to the production orders.

Key Takeaways

  • Section 299B(1) and (4) of the Criminal Procedure Act 1986 (NSW) provide a court with a preliminary power to consider documents in order to determine whether they contain protected confidences and to evaluate their probative value. This power does not require leave, and the substantive "substantial probative value" test in s 299D(1)(a) does not govern its exercise (at [75]).

  • The Court of Criminal Appeal confirmed that the word "will" in s 299D(1)(a) sets a threshold higher than possibility or balance of probabilities, but does not demand certainty or realistic inevitability. The appropriate standard takes account of the pre-trial stage at which applications are typically made (at [32]).

  • Where the credibility and reliability of a complainant is central to proceedings, and where there is a known evolution in the complainant's disclosures with some occurring after counselling commenced, inspection of counselling records under s 299B may be essential before any assessment of probative value or public interest balancing under s 299D can be properly conducted (at [81]-[82]).

  • Jury directions about delay in complaint or inconsistency of account under ss 293A and 294 of the Criminal Procedure Act are irrelevant to an assessment of whether evidence will have substantial probative value. Probative value is assessed by taking the evidence at its highest, and the existence of a cautionary direction does not diminish that assessment (at [79]).

  • The Court declined to provide guidance on representation of protected confiders who lack capacity to give instructions, noting the issue did not arise on the facts, that many of the questions are matters of legal ethics, and that appellate courts do not issue advisory opinions (at [40]).

Legislation and Cases Referenced

Legislation
- Bail Act 1978 (NSW)
- Bail Act 2013 (NSW), s 22B
- Children ( Criminal Proceedings) Act 1987 (NSW), s 15A
- Crimes Act 1900 (NSW), s 578A
- Criminal Appeal Act 1912 (NSW), ss 5F , 5F(5)(a), 5F(5)(b)
- Criminal Appeal Rules 1952 (NSW), reg 5B
- Criminal Procedure Act 1986 (NSW), ss 293A, 294, 294CB, 295-306 , 306N
- Evidence Act 1995 (NSW)

Cases
- Director of Public Prosecutions (NSW) v Van Gestel (2022) 109 NSWLR 136; [2022] NSWCCA 171
- El-Haddad v R (2015) 88 NSWLR 93; [2015] NSWCCA 10
- ER v Khan [2015] NSWCCA 230
- GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- KS v Veitch (No 2) (2012) 84 NSWLR 172; [2012] NSWCCA 266
- R v KG (2001) 54 NSWLR 198; [2001] NSWCCA 510
- R v McFelin [1985] 2 NZLR 750
- R v Tillott (1995) 38 NSWLR 1
- JK v R [2025] NSWCCA 44
- Rohan v R [2018] NSWCCA 89
- Sayer-Jones v R [2024] NSWCCA 73
- Steven Moore (a pseudonym) v The King [2024] HCA 30; (2024) 98 ALJR 1119
- Young v The King [2024] SASCA 47