Er v Khan - [2015] NSWCCA 230

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: ER v Khan [2015] NSWCCA 230
Hearing dates: 22 July 2015
Decision date: 26 August 2015
Before: Hoeben CJ at CL at [1]
Hall J at [2]
Button J at [120]
Decision:
Application for leave to appeal dismissed.

Catchwords: CRIMINAL LAW – Sexual assault communications privilege – Application for leave to appeal against a determination that documents produced in answer to subpoenas are not protected confidences under Chapter 6, Part 5, Division 2 Criminal Procedure Act 1986 – Whether the trial judge erred in finding that documents contained in records of the Department of Family and Community Services were not protected confidences – Whether the trial judge failed to give reasons or examine the relevant material – Protected confidences under the Act are ‘counselling communications’ – Whether affidavit evidence and a Schedule of Documents was sufficient evidence to find ‘counselling communications’ – Sentencing judge in this case required to consider the contents of each document individually to determine whether it was a protected confidence – Assertions of privilege insufficient evidence to establish privilege – No error established in sentencing judge’s characterisation of protected confidences or approach to considering the documents – Application for leave to appeal dismissed.
Legislation Cited: Criminal Appeal Act 1912
Criminal Procedure Act 1986
Criminal Procedure Amendment (Sexual Assault Communications Privilege) Bill (2002)
Uniform Civil Procedure Rules 2005
Cases Cited: Bailey v Department of Land and Water Conservation [2009] NSWCA 100; (2009) 74 NSWLR 333
Barnes v Federal Commissioner of Taxation [2007] FCAFC 88
Kennedy v Wallace (2004) 142 FCR 185; [2004] FCAFC 337
KS v Veitch (No 2) [2012] NSWCCA 266; (2012) 84 NSWLR 172
NAR v PPC1 [2013] NSWCCA 25
PPC v Williams [2013] NSWCCA 286
Texts Cited: Judicial Officers’ Bulletin, April 2015, Vol 27, No 3, entitled “Use of the sexual assault communications privilege in sexual assault trials”
Category: Principal judgment
Parties: ER (Applicant)
John Leslie Khan (Respondent)
Representation:
Counsel:
P Little (Applicant)
K Shead (Respondent)
Solicitors:
Stidwill Solicitors (Applicant)

File Number(s): 2014/331285
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

8 May 2015 and 20 May 2015

Before:

McClintock DCJ

File Number(s):

2014/331285

Judgment

HOEBEN CJ at CL: I agree with Hall J.
HALL J: These proceedings are brought by the applicant, ER, pursuant to s 5F (3AA(c)) of the Criminal Appeal Act 1912 for leave to appeal against a determination made by the District Court of New South Wales (his Honour, Judge McClintock SC) on 20 May 2015 that documents produced under two subpoenas do not contain protected confidences within the meaning of Division 2 of Part 5 of Chapter 6 of the Criminal Procedure Act 1986.
The application to this Court under s 5F (3AA(c)) Criminal Appeal Act on behalf of the applicant/complainant was filed on 27 May 2015 and subsequently listed for call-over on 4 June 2015.
The respondent, John Leslie Khan, has been charged with a number of offences…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Er v Khan

Details

AGLC: ER v Khan [2015] NSWCCA 230
Case: [2015] NSWCCA 230
Decision Date: 26 August 2015

CaseChat Overview and Summary

The applicant, Er, sought leave to appeal against a decision that documents produced in response to subpoenas were not protected confidences under the Criminal Procedure Act 1986. The dispute involved the production of documents related to the Department of Family and Community Services and alleged sexual assaults. The Court of Appeal was tasked with determining whether the trial judge had erred in concluding that the documents were not protected confidences and whether the trial judge failed to adequately examine the relevant material and provide reasons for their decision.

The court examined whether the trial judge correctly interpreted the term "counselling communications" as it applies to protected confidences under the Act. It was necessary to determine whether the evidence presented, including affidavit evidence and a Schedule of Documents, was sufficient to establish that the documents constituted "counselling communications." The court emphasised that the sentencing judge must individually consider the contents of each document to determine if it falls within the category of a protected confidence. The court found that mere assertions of privilege were not sufficient to establish the privilege, and the trial judge did not err in characterising the protected confidences or in their approach to considering the documents.

In conclusion, the court dismissed the application for leave to appeal, finding no error in the trial judge’s decision. The court confirmed that the sentencing judge was required to individually assess each document to determine whether it was a protected confidence and that assertions of privilege alone were insufficient to establish the privilege. The decision underscored the importance of a detailed examination of the contents of each document in determining the scope of protected confidences.

Orders