Court of Criminal Appeal
New South Wales
Case Title: PPC v Williams Medium Neutral Citation: [2013] NSWCCA 286 Hearing Date(s): 11 October 2013 Decision Date: 18 November 2013 Before: Gleeson JA at [1];
R A Hulme J at [98];
Adamson J at [99]Decision: (1) Grant the applicant leave to appeal, pursuant to s 5F(3AB) of the Criminal Appeal Act 1912, from the interlocutory judgment of the District Court delivered on 2 August 2013.
(2) Appeal allowed.
(3) Set aside the orders of McClintock DCJ dated 2 August 2013, except insofar as the orders permit access to the parties' legal representatives only to such of the subpoenaed documents in respect of which the applicant made no objection to access being granted (being those documents tagged by the applicant's solicitor with a green coloured flag for the purpose of identification).
(4) The application for leave to produce documents under s 298(2) of the Criminal Procedure Act 1986 is referred back to the trial judge for reconsideration in the light of this Court's rulings.
Catchwords: CRIMINAL LAW - interlocutory appeal - Criminal Procedure Act 1986 Chapter 6, Division 5, Part 2 - sexual assault communications privilege - issue of subpoena of documents subject to leave - where confidential affidavits provided - whether the trial judge erred in his approach to the assessment of substantial probative value - whether trial judge erred because he failed to undertake the balancing exercise in s 299D(1)(c) - whether trial judge erred in allowing access to material without considering whether it was inadmissible under s 293 as disclosing a prior sexual history Legislation Cited: Children (Criminal Proceedings) Act 1987 s 15A
Crimes Act 1900 ss 61J, 66C, 578A
Criminal Appeal Act 1912 s 5F
Criminal Procedure Act 1986 ss 3, 293, 295, 296, 298, 299, 299A, 299B, 302Cases Cited: House v The King [1936] HCA [40]; 55 CLR 499
KS v Veitch (No 2) [2012] NSWCCA 266
NAR v PPC1 [2013] NSWCCA 25
Queanbeyan City Council v Environment Protection Authority [2011] NSWCCA 108
R v Einfeld [2008] NSWCCA 215; 71 NSWLR 31Category: Interlocutory applications Parties: PPC (Applicant)
Jesse Williams (Respondent)
Director of Public Prosecutions (watching brief)Representation - Counsel: Counsel:
M Johnston (Applicant)
P Skinner (Respondent)- Solicitors: Solicitors:
SCT Lawyers (Applicant)
George Sten & Co (Respondent)
Office of the Department of Public Prosecutions (watching brief)File Number(s): 2012/108417 Decision Under Appeal - Court / Tribunal: District Court - Before: McClintock DCJ - Date of Decision: 02 August 2013 - Court File Number(s): 2012/108417 Publication Restriction: No
JUDGMENT
GLEESON JA: The applicant is the complainant in respect of a charge of aggravated sexual assault brought by the Director of Public Prosecutions, against the respondent. Following an incident at the trial of the respondent, in which the cross-examination of the applicant was adjourned, the prosecution made a disclosure to the defence. There were indications and information that the applicant was on medication. Ultimately, that led to the discharge of the jury and a new…
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Details
- AGLC
- PPC v Williams [2008] NSWCCA 215
- Case
- [2013] NSWCCA 286
- Decision Date
CaseChat Overview and Summary
In the case of PPC v Williams, the matter came before the court as an interlocutory appeal concerning a subpoena for documents that were subject to a sexual assault communications privilege. The subpoena was issued in the context of a criminal proceeding, and the respondent sought to challenge the subpoena's validity, contending that it was improperly issued and that the subpoenaed documents were inadmissible under the relevant provisions of the Criminal Procedure Act 1986. The primary legal issues the court had to address were whether the trial judge had correctly assessed the substantial probative value of the subpoenaed documents and whether the trial judge had erred in allowing access to the material without considering whether it was inadmissible under s 293 as disclosing a prior sexual history.
The court examined the statutory framework, particularly sections 299D and 293 of the Act. The trial judge had determined that the subpoenaed material had substantial probative value, which was necessary for the assessment of the applicant's credibility and reliability. However, the court noted that the concept of "substantial probative value" must be assessed in the context of admissible material. The court considered whether the trial judge had appropriately balanced the probative value of the documents against the potential prejudice to the applicant, in line with the requirements of s 299D(1)(c). Additionally, the court scrutinised whether the trial judge had correctly evaluated whether the material was inadmissible under s 293 due to its disclosure of prior sexual history. The court found that the trial judge had not adequately considered the restrictions on the admissibility of such material and that the trial judge's decision to limit access to the material to legal representatives without further scrutiny was flawed.
Ultimately, the court held that the trial judge's approach to the assessment of substantial probative value was flawed and that he had not properly undertaken the balancing exercise required by s 299D(1)(c). Furthermore, the court determined that the trial judge had erred by not considering whether the subpoenaed material was inadmissible under s 293. Consequently, the court quashed the order made by the trial judge and remitted the matter to the trial court for reconsideration in light of these errors.
The court examined the statutory framework, particularly sections 299D and 293 of the Act. The trial judge had determined that the subpoenaed material had substantial probative value, which was necessary for the assessment of the applicant's credibility and reliability. However, the court noted that the concept of "substantial probative value" must be assessed in the context of admissible material. The court considered whether the trial judge had appropriately balanced the probative value of the documents against the potential prejudice to the applicant, in line with the requirements of s 299D(1)(c). Additionally, the court scrutinised whether the trial judge had correctly evaluated whether the material was inadmissible under s 293 due to its disclosure of prior sexual history. The court found that the trial judge had not adequately considered the restrictions on the admissibility of such material and that the trial judge's decision to limit access to the material to legal representatives without further scrutiny was flawed.
Ultimately, the court held that the trial judge's approach to the assessment of substantial probative value was flawed and that he had not properly undertaken the balancing exercise required by s 299D(1)(c). Furthermore, the court determined that the trial judge had erred by not considering whether the subpoenaed material was inadmissible under s 293. Consequently, the court quashed the order made by the trial judge and remitted the matter to the trial court for reconsideration in light of these errors.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Sixthly, subject to certain exceptions in s 293(4) and s 293(6), evidence concerning a complainant's sexual experience, or lack of it, are rendered inadmissible by s 293(3), which provides:"293 Admissibility of evidence relating to sexual experience...(3) Evidence that discloses or implies:(a) that the complainant has or may have had sexual experience or a lack of sexual experience, or(b) has or may have taken part or not taken part in any sexual activity,is inadmissible." It is unnecessary to set out the detail of the exceptions to the inadmissibility of evidence of prior sexual history under s 293(4) and s 293(6). Seventhly, the concept of "substantial probative value", accepting that it extends to questions or evidence relevant to the credibility of the complainant, must nevertheless be concerned with admissible material: KS v Veitch (No 2) at [37]; NAR v PPC1 at [29]. Thus, the restrictions on the admissibility of material concerning a complainant's sexual experience or lack of it, as found in s 293, also engage the requirements in s 299D(1): KS v Veitch (No 2) at [37]; NAR v PPC1 at [29]. Eighthly, reference also needs to be made to s 302 of the Act, which deals with ancillary orders and provides:"Ancillary orders(1) Without limiting any action the court may take to limit the possible harm, or extent of the harm, likely to be caused by the disclosure of evidence of, or the contents of a document recording, a protected confidence, the court may:(a) order that all or part of the evidence be heard or document produced in camera, and(b) make such orders relating to the production and inspection of the document as, in the opinion of the court, are necessary to protect the safety and welfare of any protected confider." In the present case, the trial judge's order limiting access to the parties' legal representatives only was made pursuant to s 302. In his first judgment of 1 August 2013, the trial judge recorded (at p 2) that the subpoenaed material may be broadly described as a series of files relating to the medical and psychiatric treatment and attendant counselling of the applicant in the period before and after the alleged commission of the offence by the respondent. His Honour noted that the material contained a series of events as disclosed by the applicant together with a series of documents provided by the applicant; a series of diagnoses; the listing of symptoms, most of which came from either histories given by the applicant or material supplied by third parties, including relatives. The trial judge also recorded (at p 2) that the issues in the trial concern the applicant's account, which so far as it concerned lack of consent, was not corroborated or confirmed by any independent evidence. His Honour noted that the defence outlined by counsel for the respondent indicated that sexual intercourse did not take place. The issues raised by the defence as noted by the trial judge (at p 3), related to the reliability and truthfulness of the applicant's account, her veracity in terms of incidents not directly related to the incident in issue in the trial and general issues in respect of her overall credit. The trial judge observed (at p 3) that material in the subpoenaed documents contained within it a series of diagnoses which "give rise to concerns about the stability and reliability of the applicant and also concerns about whether the applicant is capable, or indeed does confabulate, described in much more extreme terms such as hallucinations". The trial judge found (at p 3) that:"The totality of the material fulfils the test of substantial probative value."
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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