Citation: R v Kremmer [2000] NSWCCA 529; (2000) 50 NSWLR 538; 118 A Crim R 176
Court: New South Wales Court of Criminal Appeal
Date: 13 December 2000
Judge(s): Studdert J, Simpson J, Dowd J
Background
The appellant faced a criminal charge under s 66C of the Crimes Act (a sexual offence). In preparation for his defence, he issued a subpoena to the Registrar of the Victims' Compensation Tribunal seeking all records held by the Tribunal in relation to three named individuals connected to his case.
The Tribunal declined to produce the documents, relying on s 84(2) of the Victims Support and Rehabilitation Act 1996. That provision prohibits any person from being required, whether by subpoena or any other procedure, to produce certain compensation-related documents in connection with criminal proceedings. Coolahan DCJ in the District Court upheld the Tribunal's refusal.
The appellant appealed that ruling to the Court of Criminal Appeal. A certificate under s 5(3)(b) of the Criminal Appeal Act allowed the matter to proceed, with the core question being whether s 84(2) prevented a defendant from subpoenaing those documents for forensic use in his own defence.
Legal Issues
- Whether s 84(2) of the Victims Support and Rehabilitation Act 1996 prohibits a defendant from requiring the Victims Compensation Tribunal to produce documents by subpoena, not merely prohibits the use of those documents against the defendant
- Whether s 84(1) only restricts admissibility of documents used against a person, leaving open their use for a defendant
- Whether any inconsistency existed between s 84 and the sexual assault counselling communications privilege regime in the Criminal Procedure Act 1986
- Whether s 84(2) had been impliedly repealed or modified by subsequent legislation
Decision
The Court divided on the first and principal ground of appeal. Studdert J, writing separately, concluded that s 84(2) should be construed as though the words "against any person" were read into its reference to criminal proceedings, mirroring the language of s 84(1). On that reading, the production bar in s 84(2) applied whenever the documents would be inadmissible in proceedings against any person, not merely inadmissible in the specific use sought by the defendant. Although the sub-section could have been expressed more clearly, his Honour found the Parliamentary intention, confirmed by reference to the Second Reading Speech, supported this broader construction.
Dowd J reached the contrary view on the first ground. His Honour interpreted s 84(2) more narrowly, considering that the sub-section's reference to documents "not admissible in evidence in criminal proceedings under subsection (1)" should be read in light of what the specific defendant was seeking to do with them. On that approach, documents sought by a defendant for his own forensic purposes did not fall within the production bar, because s 84(1) only restricts use against a person. Dowd J would have granted leave to appeal and vacated the District Court's order.
By majority, however, the appeal was dismissed on the first ground. Simpson J agreed with Dowd J's approach to the second and third grounds (internal inconsistency and implied repeal), both of which failed. The Court found no inconsistency between s 84 and the counselling communications regime in the Criminal Procedure Act 1986, noting the two provisions addressed differently described classes of documents for different purposes. On implied repeal, the Court held that if Parliament had intended to repeal or partially repeal s 84(2), it would have done so expressly.
The matter was remitted to the District Court for further consideration by a judge of that Court, consistent with the correct construction of s 84(2) as determined by the majority.
Orders Made
- Leave to appeal granted
- Appeal dismissed by majority
- Matter remitted to the District Court for further consideration consistent with the appropriate construction of s 84(2)
Key Takeaways
- Section 84(2) of the Victims Support and Rehabilitation Act 1996 was introduced specifically to address the gap left by the Young decision, extending the protection beyond admissibility rules to cover the obligation to produce documents at all.
- By majority, the Court of Criminal Appeal held that s 84(2) bars production of Victims Compensation Tribunal documents by subpoena even where a defendant seeks them for forensic purposes in their own defence, not merely where the documents would be used against that defendant.
- A dissenting construction held that s 84(2)'s reference to inadmissibility "under subsection (1)" should be read in context, such that documents sought by a defendant for their own forensic use fell outside the production bar because s 84(1) only restricts use against a person.
- No inconsistency was established between s 84 and the sexual assault counselling communications regime in the Criminal Procedure Act 1986: the two legislative schemes address differently described classes of material for distinct purposes and operate concurrently.
- Implied repeal of s 84(2) was rejected; the Court confirmed that express amendment is required before a specific statutory provision of this kind is taken to have been displaced.
Legislation and Cases Referenced
Legislation:
- Victims Support and Rehabilitation Act 1996 (NSW), s 84
- Crimes Act 1900 (NSW), s 66C
- Criminal Appeal Act 1912 (NSW), s 5(3)(b)
- Criminal Procedure Amendment (Sexual Assault Communications Privilege) Act 1999 (NSW)
- Interpretation Act 1987 (NSW), s 34
- Evidence Act 1995 (NSW), Div 1B of Pt 3.10
- Criminal Procedure Act 1986 (NSW), ss 147–159 (formerly ss 57–69), s 148
- Crimes Legislation Amendment (Sentencing) Act 1999 (NSW)
- Victims Compensation Act (NSW)
Cases:
- R v Saleam (1989) 16 NSWLR 14
- R v Young (1998-99) 46 NSWLR 681
- Commonwealth v Baume (1905) 2 CLR 405
- Re Bolton; ex parte Beane (1987) 162 CLR 514