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Jolley v DPP

Jolley v DPP

Case [2020] NSWSC 1406 9 October 2020

Appeal

Interlocutory Orders

Admissibility of Evidence

Criminal Law

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Supreme Court

New South Wales

Medium Neutral Citation: Jolley v DPP [2020] NSWSC 1406
Hearing dates: 9 October 2020
Date of orders: 9 October 2020
Decision date: 09 October 2020
Jurisdiction: Common Law
Before: N Adams J
Decision:
(1) Leave to appeal granted.
(2) Appeal allowed.
(3) Set aside Magistrate Giles’ order made on 14 July 2020 granting access to notes produced by Amanda Gordon of Armchair Psychology in response to the subpoena issued by Detective Rawling and first returned on 8 January 2020.
(4) No order as to costs.

Catchwords:
STATUTORY APPEAL – appeal from decision of the Local Court under s 53(3)(b) of the Crimes (Appeal and Review Act 2001 – whether question of law – meaning of “interlocutory order” – nature of test under 126B of the Evidence Act – exclusion of evidence of protected confidences – error conceded

Legislation Cited:
Crimes Act 1900 (NSW), s 93Q(1), s 93R(1), s 192E(1)(b), s 547B(1),
Crimes (Appeal and Review) Act 2001 (NSW), s 53(3)(b)
Criminal Appeal Act 1912( NSW), s 5F
Evidence Act 1995 (NSW), s 126B, s 131A
Local Court Rules 2009 (NSW), r 8.8

Cases Cited:
AF v R [2015] NSWCCA 35
Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667
Attorney-General v Chidgey (2008) 182 A Crim R 536; [2008] NSWCCA 65
Attorney-General v Lipton (2012) 224 A Crim R 177; [2012] NSWCCA 156
Director of Public Prosecutions (Cth) v Kinghorn; Kinghorn v Director of Public Prosecutions (Cth) (2020) 279 ALR 345; [2020] NSWCCA 48
Director-General, Dept of Community Services v D [2006] NSWSC 827; (2006) 66 NSWLR 582
Fantakis v Local Court of New South Wales [2020] NSWSC 931
Feeney v New South Wales Police [2016] NSWSC 1708
Franklin v Commissioner of Police and Anor [2018] NSWSC 310
Mackintosh v The Commissioner of Police (NSW) and Ors [2010] NSWSC 1064
National Employers' Mutual General Insurance Association Ltd v Waind and Hill (1978) 1 NSWLR 372
Osborne v R (2014) 238 A Crim R 417; [2014] NSWCCA 17
PPC v Stylianou [2018] NSWCCA 300
R v Steffan (1993) 30 NSWLR 633
Salter v Director of Public Prosecutions (NSW) (2009) 75 NSWLR 392; [2009] NSWCA 357
Urquhart v Lanham [2003] NSWSC 109

Category: Principal judgment
Parties: Dianne Jolley (Appellant)
Director of Public Prosecutions (Respondent)
Representation:
Counsel:
L Rowan (Applicant)
B Baker (Respondent)
Solicitors:
Kernaghan & Associates Lawyers (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2020/00220511
Publication restriction: Nil

Judgment (Revised from ex tempore)

By summons filed on 28 July 2020, the plaintiff, Dianne Jolley, appeals part of the decision of Magistrate Giles made on 14 July 2020 at the Downing Centre Local Court in relation to the production of counselling notes. The defendant is Brendan Rawlings, who is the police officer in charge of criminal proceedings brought against Ms Jolley, and the applicant for the subpoena. The Director of Public Prosecutions is conducting the criminal proceedings in relation to which the subpoena was issued…

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 Jolley v DPP

Details

AGLC: Jolley v Director of Public Prosecutions [2020] NSWSC 1406
Case: [2020] NSWSC 1406
Decision Date: 09 October 2020

CaseChat Overview and Summary

In the case of Jolley v DPP, the appellant sought to appeal a decision made by the Local Court to exclude evidence from being presented in a criminal trial. The appellant argued that the evidence in question was protected by the rule that evidence of protected confidences should be excluded under section 126B of the Evidence Act. The matter was heard by the Supreme Court of New South Wales, which had to determine whether the Local Court had correctly applied the law in excluding the evidence.

The court was tasked with determining the correct interpretation of the term "interlocutory order" in the context of an appeal from a decision made under section 53(3)(b) of the Crimes (Appeal and Review Act 2001. The court was also required to examine the nature of the test under section 126B of the Evidence Act, which governs the exclusion of evidence of protected confidences. The appellant argued that the Local Court had erred in its interpretation of the law, and that the evidence in question should not have been excluded.

The court found that the Local Court had indeed erred in its interpretation of the law, and that the evidence should not have been excluded. The court held that the term "interlocutory order" in section 53(3)(b) of the Crimes (Appeal and Review Act 2001 should be interpreted narrowly, and that the test under section 126B of the Evidence Act should be applied with due regard to the principles of natural justice. The court found that the error in the Local Court's decision was significant, and that it had the potential to affect the outcome of the criminal trial. The court therefore allowed the appeal and remitted the matter back to the Local Court for further consideration.

The final orders of the court were that the appeal be allowed, that the decision of the Local Court be quashed, and that the matter be remitted back to the Local Court for further consideration in light of the court's findings. The court did not make any orders as to costs.

Orders