KS v Veitch

[2012] NSWCCA 186

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

KS v Veitch [2012] NSWCCA 186

Hearing dates:

4 July 2012

Decision date:

29 August 2012

Before:

Basten JA at [1];
Harrison J at [41];
Beech-Jones at [42]

Decision:

(1) Grant the applicant leave to appeal pursuant to s 5F(3AA) of the Criminal Appeal Act from the interlocutory judgment of the District Court delivered on 8 May 2012.

(2) Direct that the respondent:

(a) within seven days of the date of this judgment file and serve a notice under s 78B of the Judiciary Act specifying the nature of the matter said to arise under the constitution or involving its interpretation and annexing a copy of this judgment;

(b) within 14 days of this judgment, file and serve any further written submissions, limited to the matter raised in the s 78B notice, which submissions shall also be served on any Attorney indicating an intention to intervene within 5 working days of receiving such notice; and

(c) seven days prior to the date fixed for further hearing, file an affidavit setting out the responses to the notice referred to in (a).

(3) Direct that the appellant and any Attorney seeking to intervene in the proceedings file written submissions within 28 days of the date of this judgment.

(4) Direct that the matter be listed for further argument, limited to the matter specified in the s 78B notice, on a date to be fixed by the Registrar.

Catchwords:

CONSTITUTIONAL LAW - issue of notices of a constitutional matter - whether Court satisfied that there is a real and substantial constitutional issue - whether Court has an obligation to consider whether notices should be issued - whether intention to raise constitutional issue held in good faith - whether arguable constitutional point could be raised - Judiciary Act 1903 (Cth), s 78B

CRIMINAL LAW - appeal - appeal from interlocutory judgment - leave to appeal - whether paucity of judicial consideration of provision warrants grant of leave - whether proposed appeal raises important questions warranting grant of leave - Criminal Appeal Act 1912 (NSW), s 5F(3AA) and (3AB)

CRIMINAL LAW - procedure - issue of subpoena - power of District Court to issue subpoena - provision under which subpoena issued - whether general grant of criminal jurisdiction confers powers necessary or appropriate to the exercise of criminal jurisdiction - Criminal Procedure Act 1986 (NSW), Ch 4, Pt 3; District Court Act 1973 (NSW), s 166; District Court Rules 1973, Pt 53, Div 2

CRIMINAL LAW - procedure - jurisdiction of District Court - whether Court has jurisdiction in respect of criminal proceedings between indictment and arraignment - whether construction consistent with structure of statute and powers of Court - whether Court has power to issue subpoena between indictment and arraignment - Criminal Procedure Act 1986 (NSW), ss 17, 20-21, 122, 127, 129-132; District Court Rules 1973, Pt 53, r 10D

CRIMINAL LAW - procedure - sexual assault communications privilege - subpoena in respect of protected confidence issued without leave of court or notice to confider - whether non-compliance with statutory requirements leads to invalidity - whether production of documents invalid - Criminal Procedure Act 1986 (NSW), ss 295-306

STATUTORY INTERPRETATION - Criminal Procedure Act 1986 (NSW), ss 295-306 - requirement of leave and notice prior to issue of subpoena - whether failure to obtain leave and give notice leads to invalidity

STATUTORY INTERPRETATION - Criminal Procedure Act 1986 (NSW), s 130 - whether s 130 a complete statement of jurisdiction of District Court with respect to indictable proceedings - need to consider structure of statute and context of powers conferred on Court

Legislation Cited:

Constitution, Ch III
Criminal Appeal Act 1912 (NSW), s 5F
Criminal Procedure Act 1986 (NSW), ss 17, 20, 111, 113, 114, 122, 127, 129, 130, 170, 295, 296, 297, 298, 299B, 299C, 299D, 306; Ch 4, Pt 3 (295-306) (220-232)
Criminal Procedure Regulation 2010 (NSW)
District Court Act 1973 (NSW), s 166
District Court Rules 1973, Pt 53, Div 2, rr 10D, 18-25
Interpretation Act 1987 (NSW), ss 34, 35
Judiciary Act 1903 (Cth), s 78B

Cases Cited:

Australian Competition and Consumer Commission v CG Berbatis Pty Ltd [1999] FCA 1151; 95 FCR 292
GG v The Queen [2010] NSWCCA 230; 204 A Crim R 125
Nicholas v The Queen [1998] HCA 9; 193 CLR 173
Pelechowski v The Registrar, Court of Appeal (NSW) [1999] HCA 19; 198 CLR 435
Pham v Secretary, Department of Employment and Workplace Relations [2007] FCAFC 179

Category:

Principal judgment

Parties:

KS (Appellant)
Joshua Veitch (Respondent)
Attorney General (NSW) (Amicus Curiae)
Crown (Watching brief)

Representation:

Counsel:

Mr P M Skinner/Ms S Goodwin (Appellant)
Mr C P Taylor (Respondent)
Dr J G Renwick/Ms J M Single (Amicus Curiae)
Ms S Dowling (Watching brief for Crown)
Solicitors:

Purcell Felton (Appellant)
CBD Criminal Defence Lawyers (Respondent)
Crown Solicitor's Office (Amicus Curiae)

File Number(s):

CA 2012/181447

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2012-05-08 00:00:00

Before:

Norrish DCJ

File Number(s):

DC 2011/176700

HEADNOTE

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

The applicant was the complainant in respect of three charges of assault and sexual assault brought against the respondent. The respondent sought to subpoena medical records relating to the applicant's attendances at a hospital for counselling.

Criminal Procedure Act 1986 (NSW), ss 295-306 establishes a procedure for the production of documents recording the communications made during the counselling of victims of sexual assault. Section 298(1) provides that the leave of the court is required before the issue of a subpoena for the production of such a document. Section 298(2) provides that the leave of the court is required for the production of such a document. Section 299C requires that the applicant for a subpoena is required to give notice of the application for leave to the Director of Public Prosecutions and the victim of the sexual assault.

The subpoena sought by the respondent was issued by the District Court although the respondent had not complied with ss 298(1) or 299C. The documents were produced to the Court. The applicant sought an order that the subpoena be set aside, or in the alternative, an order refusing the respondent access to the documents produced. On 8 May 2012 Norrish DCJ declined to set aside the subpoena and granted the respondent's legal representatives access to a limited number of the documents produced.

The applicant sought leave to appeal to this Court, pursuant to Criminal Appeal Act 1912 (NSW), s 5F(3AA) and (3AB). The application for leave was heard concurrently with the proposed appeal. The Attorney General of NSW appeared as amicus curiae.

At the conclusion of the hearing, the respondent foreshadowed a challenge to the constitutional validity of key provisions of the procedure established by ss 295-306. Following the hearing, the respondent submitted that the subpoena had been issued without jurisdiction because the respondent had not been arraigned at the time the subpoena was issued.

The issues for determination on appeal were:

(i) whether the District Court had jurisdiction to issue the subpoena, given that the respondent had not been arraigned when it was issued,

(ii) whether the failure to comply with the leave and notice requirements of ss 298 and 299C rendered the subpoena invalid, and

(iii) whether notices of a constitutional matter pursuant to Judiciary Act 1903 (Cth), s 78B should be issued.

The Court held (per Basten JA, Harrison and Beech-Jones JJ agreeing), granting leave to appeal and directing the issue of s 78B notices:

In relation to (i)

1. Section 130 of the Criminal Procedure Act is not a complete statement of the jurisdiction of the District Court with respect to indictable proceedings. Such a construction would be inconsistent with the powers of the Court to list proceedings, extend the time for the presentation of an indictment, and allow the amendment of an indictment, all prior to arraignment. The Court therefore has some jurisdiction prior to the arraignment, including the power to issue a subpoena for the purpose of criminal proceedings no later than the time at which the indictment is filed: [15]-[22]

GG v The Queen [2010] NSWCCA 230; 204 A Crim R 125 referred to.

In relation to (ii)

2. The consequences of issuing a subpoena without leave and producing documents without leave must be determined as matters of statutory construction of the Criminal Procedure Act. Although the question is one of some importance, the answer is not clear: [31]

Pelechowski v The Registrar, Court of Appeal (NSW) [1999] HCA 19; 198 CLR 435, referred to.

3. Even if the subpoena were valid, the production of documents, without leave of the court, might be invalid. The consequence of invalidity in circumstances where documents had in fact been produced is not clear: [31]

4. Leave to appeal should be granted because of the paucity of judicial consideration of the relevant statutory provisions, and because of the importance of the issues raised: [34]

In relation to (iii)

5. To require the issue of s 78B notices the court must be satisfied that a real and substantial issue is sought, in good faith, to be identified and argued. Thus, counsel has an obligation to identify the point with precision, at an early stage, and to act on that identification expeditiously. It is not yet clear whether there is a real and substantial constitutional issue. Despite the inadequacy of the materials before the Court, the Court has an obligation to consider whether or not it should proceed: [37]-[38]

Australian Competition and Consumer Commission v CG Berbatis Pty Ltd [1999] FCA 1151; 95 FCR 292; Pham v Secretary, Department of Employment and Workplace Relations [2007] FCAFC 179 referred to.

6. The Court could not be satisfied that the intention to raise a constitutional issue was not held in good faith. Further, an arguable point could be raised: [38]

Nicholas v The Queen [1998] HCA 9; 193 CLR 173 referred to.

Judgment

1. BASTEN JA: The applicant, KS, was the complainant in respect of three charges of assault and sexual assault brought against the respondent. The respondent sought to subpoena records held by Cumberland Hospital relating to attendances by the applicant. Documents were produced to the District Court. The applicant then sought to have the subpoena set aside or, in the alternative, an order refusing the respondent access to the documents produced. On 8 May 2012 Norrish DCJ declined to set aside the subpoena and granted access "to the accused's legal representatives" with respect to certain material, which was reduced to a bundle, being part only of the material produced by the Hospital, and marked "MFI 4".

1. The applicant seeks leave to appeal against the refusal to set aside the subpoena and the order allowing access to "MFI 4". The right of appeal, subject to a grant of leave, arises under the Criminal Appeal Act 1912 (NSW), s 5F(3AA) and (3AB).

1. The application for leave and the proposed appeal were heard concurrently. At the conclusion of the hearing, counsel for the respondent sought an adjournment to allow a foreshadowed application to challenge the constitutional validity of the key provisions of the Criminal Procedure Act 1986 (NSW) protecting from disclosure records which fell within the "sexual assault communications privilege", dealt with in ss 295-306 of the Criminal Procedure Act. The Court granted the respondent leave to file a short written submission outlining the constitutional issue which he wished to raise. That submission was received on 16 July 2012. The submission also raised what was described as "an anterior problem", namely that the subpoena was issued without jurisdiction, because the respondent had not been arraigned at the time the subpoena was issued.

1. One of the grounds on which the applicant sought leave to appeal was the failure of the respondent to obtain leave from the District Court before issuing the subpoena, contrary to s 298(1) of the Criminal Procedure Act. Accordingly, as both parties challenge the validity of the subpoena, it is appropriate to deal with that question first. If the subpoena is invalid, the order for access to material must be set aside. The constitutional issue will not then arise.

Procedural history

1. Despite the fact that much is said to turn on the stage the proceedings (if any) had reached when the subpoena was issued, key steps in the proceedings (if any) in the District Court were not put in evidence by either party, except through written submissions. Following the filing of submissions for the respondent pursuant to leave granted by this Court, the Director of Public Prosecutions deemed it appropriate to advise the Registrar of the Court (and the parties) of certain procedural steps, together with his opinion as to the status of the proceedings in the District Court. (At the hearing before this Court, the Director was present but did not appear and took no part in the hearing.) The Attorney General (NSW) was granted leave to be heard as amicus curiae, for the purpose of making submissions in relation to the proper construction of the provisions of the Criminal Procedure Act relating to the sexual assault communications privilege. The primary position taken by the respondent at the hearing in this Court was that leave to appeal should be refused.

1. According to the letter from the Director, the first listing in the District Court was on 28 October 2010: as the indictment alleged an offence in May 2011, that was implausible. Rather, there appears to have been a committal in the course of 2011, following which the committal papers were probably sent to the Registrar of the District Court, pursuant to the Criminal Procedure Act, s 111. Copies of the papers are required to be given to the Director and to the accused: ss 113 and 114.

1. It may be assumed that the matter came before Solomon DCJ on the "first listing in the District Court" on 28 October 2011, at which time a timetable was fixed for the filing of an indictment and a trial. The listing arrangements are made by the appropriate officer in the District Court pursuant to s 122.

1. According to the respondent's supplementary submissions, the District Court file contains an indictment dated 28 December 2011 and filed on 9 January 2012 and a further indictment dated 7 May 2012 (and, it may be inferred, filed on that date).

1. An indictment is required to be presented within four weeks after the committal of an accused person for trial: s 129(2). That time can be extended by order of the "relevant court" which is defined to mean either the Supreme Court or the District Court "before which the matter has been listed for trial or mention": s 129(1) and (3)(b). The court is also empowered to proceed with the trial as if an indictment had been presented, even if that were not the case: s 129(4)(a).

1. The subpoena in the present matter, bearing a stamp of the District Court of New South Wales, and a separate "received" stamp with the date 30 March 2012, had a return date of 19 April 2012.

1. The trial date of 23 April 2012, which had apparently been fixed at the first listing by Solomon DCJ, was confirmed by the Chief Judge, Justice Blanch, at a mention on 20 April 2012. However, on 23 April the trial was vacated and stood over to 7 May 2012. On 3 May 2012 argument concerning the subpoena was commenced before Flannery DCJ. Her Honour did not make orders, but stood the matter over to the commencement of the trial on 7 May 2012. Although a fresh indictment was apparently filed on that date, the respondent was not arraigned, nor the jury empanelled. Rather, the whole of the first day was taken with argument in respect of the subpoena. The following day Norrish DCJ delivered the judgment the subject of the present appeal.

Validity of subpoena

(a) power to issue subpoena

1. There was some uncertainty revealed in the submissions as to the provisions under which the subpoena was issued. Reference was made to Ch 4, Pt 3 of the Criminal Procedure Act (ss 220-232): however, that Part is said to apply only to proceedings before the Local Court or an Industrial Magistrate: s 170(2). Its application to the District Court in indictable proceedings, could only occur by way of regulation, made for the purposes of s 220. There is no provision in the Criminal Procedure Regulation 2010 (NSW) which has that effect.

1. As a second possible source of power, the respondent suggested that a subpoena might be issued in a criminal matter pursuant to the "general grant of criminal jurisdiction" in s 166 of the District Court Act 1973 (NSW). However, that section provides that the District Court has criminal jurisdiction conferred upon it by statute and "generally" has the same criminal jurisdiction as Courts of Quarter Sessions. It does not in terms confer powers necessary or appropriate to the exercise of that jurisdiction.

1. Thirdly, the respondent submitted that the power to issue a subpoena was conferred by the District Court Rules 1973, Pt 53, made pursuant to s 171(2)(b) of the District Court Act. Part 53, Div 2, deals with subpoenas (rr 18-25). Although certain rules operate by reference to provisions of the Criminal Procedure Act, Ch 4, Pt 3, the rules are not so limited. Accordingly, it should be accepted that the power of a Registrar of the District Court to issue a subpoena in relation to a criminal trial, subject to any statutory constraints, is conferred by Pt 53, Div 2 of the District Court Rules.

(b) jurisdiction to issue subpoena

1. The next step in the respondent's submission (expressly adopted by the Director) was that a subpoena could only be issued in the course of the exercise of the criminal jurisdiction of the Court which, it was submitted, was conferred by s 130 of the Criminal Procedure Act. That section provides:

"130 Trial proceedings after presentation of indictment and before empanelment of jury

(1) In this section, court means the Supreme Court or District Court.

(2) The court has jurisdiction with respect to the conduct of proceedings on indictment as soon as the indictment is presented and the accused person is arraigned, and any orders that may be made by the court for the purposes of the trial in the absence of a jury may be made before a jury is empanelled for the trial."

1. The submission involved three steps: first, that s 130 was a complete statement of the jurisdiction of the District Court with respect to indictable proceedings; secondly, s 130 involved two stages, namely the presentment of the indictment and the arraignment of the accused and, thirdly, that the respondent had not been arraigned before the issue of the subpoena on 30 March 2012. As explained by Beazley JA (Buddin J and Barr AJ agreeing) in GG v The Queen [2010] NSWCCA 230; 204 A Crim R 125 at [62]:

"'Arraignment' (which is not defined in the Criminal Procedure Act) is a term of ancient origin describing the process whereby an accused person is called for trial, the indictment read and a plea taken (see Archbold, Criminal Practice Pleading and Evidence)."

1. An indictment is presented by filing an indictment with the Registrar of the court: Criminal Procedure Act, s 127 and District Court Rules, Pt 53, r 10D. In the present case, an indictment had been presented, but the respondent had not been arraigned before the issue of the subpoena. The second and third steps in the respondent's argument are therefore correct. The critical issue is the correctness of the first step, namely that no subpoena could issue until the jurisdiction of the court was engaged pursuant to s 130.

1. There are a number of reasons for thinking that s 130 does not have the effect for which the respondent contended. First, the section heading refers to "Trial proceedings". Although the heading to the section is not part of the Act, it may be taken into account as extrinsic material: Interpretation Act 1987 (NSW), ss 34 and 35. Further, read in its statutory context, s 130 is part of the logical process by which, pursuant to s 131, subject to s 132, criminal proceedings are required to be tried by a jury. So understood, s 130(2) refers to jurisdiction to conduct a trial on indictment.

1. Secondly, the proposed construction of s 130, which would preclude the District Court taking any steps in relation to a criminal proceeding until the accused had been arraigned, is inconsistent with the earlier provisions in Pt 3 dealing with the listing of criminal proceedings referred to above. It is clear that steps may be taken to list proceedings (s 122) and to give directions, even before an indictment has been presented, let alone the event of arraignment. That follows from the fact that, pursuant to s 129(3), the court may order an extension of the time within which the indictment is to be presented, a step which must probably be taken prior to the presentation of any indictment, assuming it is outside the prescribed four week period after committal. Further, an extension must be sought within the prescribed period: District Court Rules, Pt 53, r 10F. Significantly, s 129(4) confers extensive powers on the court:

"129 Time within which indictment to be presented

...

(4) If an indictment is not presented within the time required by this section, the relevant court may:

(a) proceed with the trial if an indictment has been presented, or

(b) adjourn the proceedings, or

(c) take such other action as it thinks appropriate in the circumstances of the case.

...

(7) This section does not affect the powers of the relevant court under section 21."

1. An indictment may be amended with leave of the court after it is presented: Criminal Procedure Act, s 20. There is no suggestion in that section, or in s 21 dealing with the circumstances in which an indictment may be amended and as to the further orders which may be made, that the powers of the court thereunder are constrained by the need for the accused to be arraigned before such an application may be made. It would at least be otiose, if not incongruous, to require an accused to plead to an indictment before an objection could be taken to its validity: cf s 17.

1. The structure of the Criminal Procedure Act (to say nothing of common practice in the District Court) is thus inconsistent with the proposition that the court has no jurisdiction in criminal proceedings until the accused has been arraigned. What the court does not have prior to arraignment is the jurisdiction to conduct a trial. That is because the taking of a plea is a precondition to conducting a trial.

1. It is not necessary for the purposes of this argument to discuss the numerous authorities dealing with the institution of proceedings, the commencement of proceedings, the hearing of proceedings or the commencement of the trial, many of which were reviewed by the Court in GG v The Queen. It is sufficient to note that the Court has power to issue a subpoena for the purpose of criminal proceedings no later than the time at which an indictment is presented by filing it with the Registrar. Accordingly, the respondent's submission as to the invalidity of his own subpoena should be rejected.

(c) issue of subpoena without leave

1. The applicant's challenge to the subpoena relied on the specific requirements with respect to material subject to the privilege in respect of sexual assault communications. Relevantly for present purposes, s 298 of the Criminal Procedure Act states:

"298 Protected confidences-criminal proceedings

(1) Except with the leave of the court, a person cannot seek to compel (whether by subpoena or any other procedure) any other person to produce a document recording a protected confidence in, or in connection with, any criminal proceedings.

(2) Except with the leave of the court, a document recording a protected confidence cannot be produced in, or in connection with, any criminal proceedings.

(3) Except with the leave of the court, evidence cannot be adduced in any criminal proceedings if it would disclose a protected confidence or the contents of a document recording a protected confidence."

1. The term "protected confidence" and related phrases are defined in s 296 of the Criminal Procedure Act, relevantly for present purposes as follows:

"296 What is a protected confidence?

(1) In this Division:

protected confidence means a counselling communication that is made by, to or about a victim or alleged victim of a sexual assault offence.

(2) A counselling communication is a protected confidence for the purposes of this Division even if it:

(a) was made before the acts constituting the relevant sexual assault offence occurred or are alleged to have occurred, or

(b) was not made in connection with a sexual assault offence or alleged sexual assault offence or any condition arising from a sexual assault offence or alleged sexual assault offence.

(3) For the purposes of this section, a communication may be made in confidence even if it is made in the presence of a third party if the third party is present to facilitate communication or to otherwise further the counselling process.

(4) In this section:

counselling communication means a communication:

(a) made in confidence by a person (the counselled person) to another person (the counsellor) who is counselling the person in relation to any harm the person may have suffered...."

1. In its terms, s 298 is unequivocal in the prohibitions it seeks to impose. Unfortunately, practical considerations as to the operation of the provision are not clearly thought through. Thus, it is one thing to say a person "cannot" do something; it is another to identify the consequences where the person evidently has done the prohibited thing. In the present case, not only was the subpoena issued by the Registrar, without the procedural steps necessary to obtain leave, on the application of the respondent, but the Hospital, again without leave, produced the documents to the Court.

1. The schedule to the subpoena identified the documents or things to be produced in the following terms:

"All notes, files, clinical notes, patient assessments, patient histories, test results, treatment regimes and discharge summaries, including but not limited to any clinical notes held by a [named psychiatrist] pertaining to [KS] ... from 1 January 1995 to 31 December 2007."

1. Depending upon what papers were available when issuing a subpoena in those terms, it might be unreasonable to expect that the Registrar would appreciate that the subpoena could not be issued without leave pursuant to s 298. There is a further large question as to whether it would be reasonable to expect the recipient of a subpoena in this form to appreciate, first, that it had been issued without leave of the court and, secondly, that it included or might include protected confidences which could not be produced "except with the leave of the court". (Presumably the section expects that where leave to issue is sought, leave to produce would also be addressed.)

1. The procedure for seeking leave is set out in s 299C. The applicant (in this case the respondent) was required to give notice in writing of the application for leave to the Director: s 299C(2). Curiously, in the case of an application for leave to issue a subpoena, the notice to the person to produce the document is required to specify the day on which the document "is to be produced": s 299C(1)(c). On the basis that the subpoena has not been issued, it must surely be the day on which the application for leave is to be heard, rather than the day on which the document is to be produced, which should be specified. No doubt good sense would ensure that the notice would include the return date on the leave application, which must be at least 14 days after the notice is given, unless the court abbreviates the period: s 299C(4). Again, somewhat impractically, s 299D requires the court to make an assessment as to whether the document will, if produced, have substantive probative value which will substantially outweigh the public interest in preserving the confidentiality of protected confidences. How the court should make such an assessment on an application for leave to issue a subpoena is by no means clear.

1. Because the provisions as to leave and as to notice were not complied with in the present case, the Court in fact had access to the whole of the hospital file when making its assessment, although for the purpose of granting access to the parties. What it did not do, despite noting the requirements of s 298, was to consider whether the absence of leave to issue the subpoena invalidated the subpoena and thus whether the documents should simply have been returned to Cumberland Hospital, uninspected. The reason why that matter was not addressed was because it was not raised as an issue. The three issues identified by the trial judge as before him for determination were:

(a) an application by the complainant to set aside the subpoena issued on behalf of the accused on the ground that it served "no legitimate forensic purpose";

(b) the submission by the accused that the material was not covered by the sexual assault communications privilege, and

(c) an application for leave to have access to some or all of the documents produced under the subpoena.

1. For present purposes, the fact that the issue arising under s 298(1) was not addressed is not significant; it is the terms of the provision which are significant in determining whether a failure to comply with the leave and notice requirements spells invalidity or some lesser consequence.

1. The consequences of issuing a subpoena without leave and producing documents without leave must be determined as matters of statutory construction of the Criminal Procedure Act. Although the question is one of some importance, the answer is not clear. If the subpoena were invalid, if issued without leave, non-compliance might not constitute a contempt of court: Pelechowski v The Registrar, Court of Appeal (NSW) [1999] HCA 19; 198 CLR 435 at [55]. Even if the subpoena were valid, the production of documents, without leave of the court, might be "invalid" although what that would mean in circumstances where documents had in fact been produced is by no means clear.

1. With respect to "preliminary criminal proceedings", which include committal proceedings, there is a threefold prohibition against seeking to compel production, production and adducing evidence: s 297. The prohibitions are not qualified by the possibility of a grant of leave. Once the possibility of leave is introduced in relation to trial proceedings, pursuant s 298, there are procedural issues as to how leave may be sought. Further, there is a conditional prohibition on the grant of leave unless the court is satisfied of the matters specified in s 299D(1), which states:

"299D Determining whether to grant leave

(1) The court cannot grant an application for leave under this Division unless the court is satisfied that:

(a) the document or evidence will, either by itself or having regard to other documents or evidence produced or adduced or to be produced or adduced by the party seeking to produce or adduce the document or evidence, have substantial probative value, and

(b) other documents or evidence concerning the matters to which the protected confidence relates are not available, and

(c) the public interest in preserving the confidentiality of protected confidences and protecting the principal protected confider from harm is substantially outweighed by the public interest in admitting into evidence information or the contents of a document of substantial probative value."

1. Precisely how that provision is intended to operate with respect to an application for leave to issue a subpoena to produce a document is unclear. Nor is the situation greatly improved by providing that if "a question arises under this Division relating to a document or evidence, a court may consider the document or evidence": s 299B(1).

Grant of leave to appeal

1. The difficulties of construction, combined with the fact that these provisions appear not yet to have been the subject of consideration either in this Court or in an available judgment of a trial court, provide a sufficient basis for a grant of leave to appeal from the judgment below. Further, assuming that the trial judge was correct in proceeding to determine whether the material was covered by the sexual assault communications privilege and, on the basis that it was, whether to grant leave for access to some of the documents, his reasoning applying s 299D raised important questions, the answers to which warranted a grant of leave to appeal in their own right. Accordingly, the Court should grant leave pursuant to s 5F(3AB) of the Criminal Appeal Act.

Determination of substantive issues

1. To determine the appeal, it is necessary to construe the relevant parts of ss 298 and 299D, in the light of the surrounding provisions. It would be possible to undertake that exercise at this stage. However, any conclusions reached would not determine the appeal if there is a constitutional issue to be raised by the respondent. The proposed challenge to the validity of s 298 (and specifically sub-s 298(1)) contends that it constitutes a practical prohibition on the production of relevant documents and evidence, because of the substantial limitations imposed by s 299D on any application for leave. The respondent wishes to contend that those limitations restrict the court's capacity to provide an accused with a fair trial and therefore exceed the legislative power of the State Parliament. Although the supplementary written submission did not condescend to identify any relevant source of constitutional limitation, in the course of oral argument reference was made to Ch III of the Constitution: Tcpt, 04/07/12, p 41 (25)-(28).

1. Counsel for the respondent was given an opportunity to file supplementary written submissions for the particular purpose of identifying the constitutional issue. The assistance provided was less than revealing.

1. The Court is left in some doubt in these circumstances as to whether there is a "real and substantial constitutional issue" sought to be raised in the proceeding: see Australian Competition and Consumer Commission v CG Berbatis Pty Ltd [1999] FCA 1151; 95 FCR 292 at [22] (French J). The importance of identifying with some precision the nature of the constitutional question derives from the obligation on the court not to proceed until notice of the constitutional matter has been given to the Attorneys General of the Commonwealth and the States: Judiciary Act 1903 (Cth), s 78B. If the notice fails adequately to identify the matters sought to be raised and the legal argument proceeds on a different basis, further notices may be required. The fact that such procedural steps can delay the holding of a criminal trial and may achieve the vacation of hearing dates requires the court to be diligent in satisfying itself that a real and substantial issue is sought, in good faith, to be identified and argued. In those circumstances, the obligation on counsel is to identify the point with precision, at an early stage, and to act on that identification expeditiously. No attempt has yet been made, apparently, to formulate the point in a manner which could allow the provision of a s 78B notice.

1. In Pham v Secretary, Department of Employment and Workplace Relations [2007] FCAFC 179 the Full Court of the Federal Court disregarded notices under s 78B because they raised matters which were characterised as "frivolous or vexatious or do not arise under the Constitution or involve its interpretation": at [12] (French, Lindgren and Jacobson JJ). Despite the inadequacy of the materials presently before this Court, the Court itself has an obligation to consider whether or not it should proceed. At this stage the Court could not be satisfied that the intention to raise a constitutional issue was not held in good faith. In any event, that factor can be tested by directions requiring that effect be given to the intention expeditiously. Further, it is not beyond contemplation that an arguable point could be raised, similar to that considered in respect of a Commonwealth offence (and rejected) in Nicholas v The Queen [1998] HCA 9; 193 CLR 173.

1. In these circumstances, the further hearing of the matter should be stood over to allow the respondent to file and serve any notice required by s 78B of the Judiciary Act, identifying the specific matter arising under the Constitution or involving its interpretation. The parties will have an opportunity to file and serve written submissions, limited to the matter so raised; the appeal will then be relisted to hear final argument, limited to that matter.

1. The Court should order and direct as follows:

(1) Grant the applicant leave to appeal pursuant to s 5F(3AB) of the Criminal Appeal Act from the interlocutory judgment of the District Court delivered on 8 May 2012.

(2) Direct that the respondent:

(a) within seven days of the date of this judgment file and serve a notice under s 78B of the Judiciary Act specifying the nature of the matter said to arise under the Constitution or involving its interpretation and annexing a copy of this judgment;

(b) within 14 days of this judgment, file and serve any further written submissions, limited to the matter raised in the s 78B notice, which submissions shall also be served on any Attorney indicating an intention to intervene within 5 working days of receiving such notice; and

(c) seven days prior to the date fixed for further hearing, file an affidavit setting out the responses to the notice referred to in (a).

(3) Direct that the appellant and any Attorney seeking to intervene in the proceedings file written submissions within 28 days of the date of this judgment.

(4) Direct that the matter be listed for further argument, limited to the matter specified in the s 78B notice, on a date to be fixed by the Registrar.

1. HARRISON J: I agree with Basten JA.

1. BEECH-JONES J: I agree with the reasons of Basten JA and the orders his Honour proposes. In addition I note one further matter about s 5F(3AA). Division 2 of Part 5 of the Criminal Procedure Act confers on victims of sexual assault a significant degree of protection of the confidentiality of their "counselling communications" as defined in s 296(4). An order of the kind challenged in these proceedings has the potential to interfere with that protection. The interests of a victim, if not their rights, are clearly adversely affected by the making of such an order. Their only means of challenging the order is by seeking leave to appeal. In that sense an order granting access has a degree of finality so far as their rights and interests are concerned. Thus any application for leave to appeal by a victim under s 5F(3AA) must be approached on the basis that, if the order is left undisturbed, then whatever rights they had under Division 2 of Part 5 will be lost. In this respect it can be contrasted with other applications for leave to appeal from interlocutory orders at least so far as they are made by accused persons. In those cases an adverse interlocutory order may still form part of a challenge to their conviction even if they have sought and been refused leave under s 5F(3). Of course concerns about the delay and fragmentation of criminal proceedings are still very significant matters to be considered in the determination of an application under s 5F(3AA).

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Decision last updated: 29 August 2012