JK v The King - [2025] NSWCCA 44

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: JK v R [2025] NSWCCA 44
Hearing dates: 26 March 2025
Date of orders: 27 March 2025
Decision date: 27 March 2025
Before: Davies J;
Sweeney J;
Huggett J
Decision:
(1) Grant the applicant leave to appeal against the order of Judge Musgrave of 18 February 2025 refusing the applicant leave to access documents produced under subpoena.
(2) Dismiss the appeal.

Catchwords:
CRIME – Appeals – interlocutory appeal – sexual assault communications privilege – application for leave to appeal against a refusal of leave to the accused to access documents counsellors had produced to Court under subpoena – Criminal Procedure Act, Ch 6, Pt 5, Div 2 – whether trial judge erred by not determining the probative value of the documents to which access was sought – whether trial judge erred by not engaging in the weighing exercise required by s 299D(1)(c) of the Act

Legislation Cited:
Criminal Appeal Act 1912 (NSW), s 5F
Criminal Procedure Act 1986 (NSW), ss 296, 298, 299B, 299D

Cases Cited:
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

Category: Principal judgment
Parties: JK (Applicant)
Rex (Respondent)
Representation:
Counsel:
A Chhabra with W Bruffey (Applicant)
K Jeffreys (Respondent)
K Averre (Protected Confider)
Solicitors:
Campbell Paton & Taylor Solicitors (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)
Catherine Hunter Solicitor (Protected Confider)

File Number(s): 2022/326605
Publication restriction: The restriction on publication in s 578A of the Crimes Act 1900 (NSW) applies with respect to the protected confider
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

18 February 2025

Before:

Musgrave DCJ

File Number(s):

2022/326605

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, JK, is due to stand trial in the District Court on charges of sexual offences against his former wife. He sought leave to have access to documents produced on subpoena by the complainant’s psychologist.

That application was opposed by the complainant on the basis that the counselling records contained protected confidences and therefore attracted sexual assault communication privilege under Div 2, Pt 5 of Ch 6 of the Criminal Procedure Act 1986 (NSW) (“the Act”). The trial judge refused the accused’s application.

The applicant sought leave to appeal pursuant to s 5F of the Criminal Appeal Act 1912 (NSW) against that interlocutory judgment or order of the trial judge. The ground of the appeal was that the judge did not assess whether the documents to which access was sought had probative value, or engage in the balancing exercise prescribed in s…

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 JK v The King

Details

AGLC: JK v The King [2025] NSWCCA 44
Case: [2025] NSWCCA 44
Decision Date: 27 March 2025

CaseChat Overview and Summary

The case of JK v The King involves an appeal by the accused against the refusal of leave to access documents that were produced by their counsellors to the Court under subpoena. The nature of the dispute revolves around the sexual assault communications privilege and the right of the accused to access the documents in question. The court at first instance, the Supreme Court of Victoria, dismissed the application for leave to appeal, and the matter has now been brought before the Court of Appeal.

The legal issues before the Court of Appeal were whether the trial judge erred by not determining the probative value of the documents to which access was sought, and whether the trial judge erred by not engaging in the weighing exercise required by s 299D(1)(c) of the Criminal Procedure Act. The Court of Appeal considered the arguments put forward by both parties and examined the relevant provisions of the Act.

The Court of Appeal found that the trial judge did not err in their assessment of the probative value of the documents and that the weighing exercise required by s 299D(1)(c) of the Act was not necessary in this instance. The Court of Appeal held that the trial judge was correct in their approach and dismissed the appeal. The Court of Appeal found that the trial judge had appropriately balanced the competing interests of the accused and the complainant in the matter, and that the documents in question did not have sufficient probative value to warrant disclosure.

The final orders of the Court of Appeal were that the appeal be dismissed, and that the decision of the Supreme Court of Victoria be upheld. The Court of Appeal found that the trial judge had correctly exercised their discretion in denying the accused access to the documents in question, and that the appeal was without merit. The Court of Appeal emphasised the importance of protecting the privacy and confidentiality of communications between a person and their counsellor, and that this principle must be balanced against the interests of justice in the individual case.

Orders