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NAR v PPC1

NAR v PPC1

Case [2013] NSWCCA 25 15 February 2013

Natural Justice & Procedural Fairness

Criminal Law

Constitutional Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: NAR v PPC1 [2013] NSWCCA 25
Hearing dates: 13 February 2013
Decision date: 15 February 2013
Before: Hoeben JA at [1]
Adams J at [2]
Beech-Jones J at [7]
Decision:
Leave to appeal refused

Catchwords:
CRIMINAL LAW - interlocutory appeal -sexual assault communications privilege - issue of subpoena and production of documents subject to leave - inspecting subpoenaed documents for protected confidences - consent to production - whether compelled documents had substantial probative value - Criminal Procedure Act 1986, ss 295-306
CONSTITUTIONAL LAW - limits on legislative power of States - essential characteristics of State court receiving federal jurisdiction - sexual assault communications privilege - State law prohibits compelled production of counselling communications - issue of subpoena and production of documents subject to leave - repugnancy to judicial power or institutional integrity of State court - Criminal Procedure Act 1986, ss 295-306
Legislation Cited: - Crimes Act 1900 - s 61I, s 61L
- Criminal Appeal Act 1912 - s 5F(3)
- Criminal Code Act 1995 (Cth) - s 270.6
- Criminal Procedure Act 1986 - s 293, s 295, s 296, s 298, s 299B, s 299D, s 300, Ch 6 Pt 5 Div 2
- Evidence Act 1995 - Pt 3.7 Div 2, Pt 3.10 Div 1B
- Judiciary Act 1903 (Cth) - s 79(1)
Cases Cited: - Alister v R (1983) 154 CLR 404
- JAD v The Queen [2012] NSWCCA 73
- Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51
- KS v Veitch [2012] NSWCCA 186
- KS v Veitch (No 2) [2012] NSWCCA 266
- Queanbeyan City Council v Environment Protection Authority [2011] NSWCCA 108
- R v Einfeld [2008] NSWCCA 215; 71 NSWLR 31
- R v Van Phu Huo (New South Wales Court of Criminal Appeal, 18 July 1994, unrep)
Category: Principal judgment
Parties: "NAR" (Applicant)
"PPC1" (First Respondent)
Crown (Second Respondent)
Attorney General of New South Wales (Intervenor)
Representation: Counsel:
Mr S. Sivaloganathan (Applicant)
Mr P.M. Strickland SC, Mr G.F. Jauncey (First Respondent)
Ms J.R. Dwyer (Second Respondent)
Dr J.G. Renwick SC, Mr R. Rankin (Intervenor - Attorney General of New South Wales)
Solicitors:
Jeffreys Lawyers (Applicant)
Heenan & Co (First Respondent)
Solicitor for Public Prosecutions (Second Respondent)
Crown Solicitor's Office of New South Wales (Intervenor - Attorney-General of New South Wales)

File Number(s): 2011/008243
Publication restriction: Note that this version of the judgment has been modified from the version published to the parties to use a pseudonym for the applicant who is awaiting trial, and a variant on the pseudonym of the victim from that which was originally published.
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2012-08-20 00:00:00

Before:

Zahra DCJ

File Number(s):

2011/008243

judgment

HOEBEN JA: I agree with Beech-Jones J. I make no comment in relation to the observations of Adams J since for the reasons set out in [42]-[49] of the judgment of Beech-Jones J, the issue…

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 NAR v PPC1

Details

AGLC: NAR v PPC1 [2013] NSWCCA 25
Case: [2013] NSWCCA 25
Decision Date: 15 February 2013

CaseChat Overview and Summary

The appellant, NAR, brought an interlocutory appeal against a decision to compel the production of documents to the respondent, PPC, in relation to a sexual assault charge. The Federal Court of Australia was tasked with determining whether the compelled production of counselling documents was subject to leave, and whether the documents had substantial probative value. The central issue was whether the documents fell under the sexual assault communications privilege, which was a matter of State law prohibiting the compelled production of counselling communications. The Court also had to consider whether the compelled production of the documents was repugnant to the judicial power or institutional integrity of the State court.

The Court held that the issue of subpoena and production of documents was subject to leave under the Criminal Procedure Act 1986, sections 295-306. The Court noted that the sexual assault communications privilege was an essential characteristic of the State court receiving federal jurisdiction, and that the State law prohibiting compelled production of counselling communications was not repugnant to the judicial power or institutional integrity of the State court. The Court further held that the compelled documents had substantial probative value, and that the appellant had failed to establish that the privilege outweighed the probative value of the documents.

The Court held that the compelled production of the documents was not repugnant to the judicial power or institutional integrity of the State court, and that the appellant's appeal was dismissed. The Court further held that the documents had substantial probative value, and that the appellant had failed to establish that the privilege outweighed the probative value of the documents.

The final orders of the Court were that the appellant's appeal was dismissed, and that the documents were to be produced to the respondent. The Court also held that the issue of subpoena and production of documents was subject to leave, and that the State law prohibiting compelled production of counselling communications was not repugnant to the judicial power or institutional integrity of the State court.

Orders