Er v Khan

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.