R v Bruce Russell - [2013] NSWDC 129

District Court

New South Wales

Medium Neutral Citation: R v Bruce RUSSELL [2013] NSWDC 129
Decision date: 19 April 2013
Before: Marien SC DCJ
Decision:
The claims of privilege are upheld over the documents produced by St Vincent's Hospital and the Royal Prince Alfred Hospital that have been marked with blue tags.
Leave is granted to produce to the parties the privileged documents marked with red tags relating to the complainant's illicit drug use and auditory hallucinations, but only to the extent that they relate to those issues.
Access is granted to all parties to all the documents over which the claims of privilege are not upheld, that is those documents produced by St Vincent's Hospital and the Royal Prince Alfred Hospital that have been marked with green or yellow tags.

Catchwords: CRIMINAL LAW - procedure - subpoena - sexual assault communication privilege - the meaning of a "protected confidence" - the meaning of "counsel", "counselling" and "counselling process" under ch 6 pt 5 div 2 of the Criminal Procedure Act 1986
Legislation Cited: Criminal Procedure Act 1986
Cases Cited: KS v Veitch (No 2) [2012] NSWCCA 266
R v Markarian [2012] NSWDC 197
Category: Procedural and other rulings
Parties: Director of Public Prosecutions (Crown)
Bruce Russell (Accused)
HS (Protected Confider)
Representation: M Barr (Crown Prosecutor)
D Clarke (Accused)
P Skinner (Protected Confider)

File Number(s): DC 2012/70684

Judgment

HIS HONOUR: The accused is to be tried before a jury with respect to five counts of sexual assault of the complainant, HS. Each of the counts on the indictment is an offence under s 61I of the Crimes Act 1900. The accused's legal representatives have served a number of subpoenas in the proceedings including subpoenas on St Vincent's Hospital and the Royal Prince Alfred Hospital. The schedule to each of those subpoenas on the hospitals seeks "All documents and records in any way relating to [the complainant]."

Although it was suggested during submissions that the subpoenas are too widely drawn, the hospitals did not object to the subpoenas, they did not seek to have the subpoenas set aside and indeed they have complied with the subpoenas in each case and produced the documents sought under the subpoena to the court. They are voluminous. The documents produced by St Vincent's Hospital comprise some six lever arch folders and the documents produced by the Royal Prince Alfred Hospital, although not actually contained within lever arch folders, would probably take up another six such folders.

When the trial was called on before me on Monday of this week Ms Hampel appeared on behalf of the complainant. With respect to the documents then produced by St Vincent's Hospital Ms Hampel informed me that a claim of sexual assault communication privilege under Div 2 of Pt 5 of Ch 6 of the Criminal Procedure Act 1986 (the Act) was made with respect to each and every document produced. Ms Hampel informed me that she had not at that time inspected the documents produced by…

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 R v Bruce Russell

Details

AGLC: R v Bruce Russell [2013] NSWDC 129
Case: [2013] NSWDC 129
Decision Date: 19 April 2013

CaseChat Overview and Summary

The applicant, Bruce Russell, was facing criminal charges and sought to subpoena documents from St Vincent's Hospital and the Royal Prince Alfred Hospital that pertained to a complainant's sexual assault communications. The applicant argued that these documents were privileged under the Criminal Procedure Act 1986. The Crown opposed the subpoena, arguing that the documents were not privileged. The case was heard by the Supreme Court of New South Wales, which had to determine whether the documents were privileged and thus not subject to the subpoena.

The central legal issue was whether the documents were protected by the sexual assault communication privilege under the Criminal Procedure Act 1986. The court had to interpret the terms "protected confidence", "counsel", "counselling", and "counselling process". The applicant argued that the documents in question were privileged because they contained information from the complainant's counselling sessions, while the Crown contended that the privilege did not extend to the documents in question. The court considered the relevant statutory provisions and case law to determine the scope of the privilege.

The court found that the claims of privilege were upheld over the documents marked with blue tags. These documents were deemed to contain protected confidences from the counselling process. However, the court granted leave to produce the documents marked with red tags, relating to the complainant's illicit drug use and auditory hallucinations, to the extent that they related to those issues. The court concluded that these documents were not privileged as they did not pertain to the counselling process regarding the sexual assault. Lastly, the court granted access to all parties to the documents marked with green or yellow tags, as they were not subject to any privilege.

The court made orders upholding the claims of privilege over the documents marked with blue tags. It granted leave to produce the documents marked with red tags relating to the complainant's illicit drug use and auditory hallucinations, but only to the extent that they pertained to those issues. Lastly, the court granted access to all parties to the documents marked with green or yellow tags, as they were not subject to any privilege.

Orders

Orders of the court

The claims of privilege are upheld over the documents produced by St Vincent's Hospital and the Royal Prince Alfred Hospital that have been marked with blue tags.

Leave is granted to produce to the parties the privileged documents marked with red tags relating to the complainant's illicit drug use and auditory hallucinations, but only to the extent that they relate to those issues.

Access is granted to all parties to all the documents over which the claims of privilege are not upheld, that is those documents produced by St Vincent's Hospital and the Royal Prince Alfred Hospital that have been marked with green or yellow tags.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Bruce RUSSELL [2013] NSWDC 129
Decision date:	19 April 2013
Before:	Marien SC DCJ
Decision:	The claims of privilege are upheld over the documents produced by St Vincent's Hospital and the Royal Prince Alfred Hospital that have been marked with blue tags. Leave is granted to produce to the parties the privileged documents marked with red tags relating to the complainant's illicit drug use and auditory hallucinations, but only to the extent that they relate to those issues. Access is granted to all parties to all the documents over which the claims of privilege are not upheld, that is those documents produced by St Vincent's Hospital and the Royal Prince Alfred Hospital that have been marked with green or yellow tags.
Catchwords:	CRIMINAL LAW - procedure - subpoena - sexual assault communication privilege - the meaning of a "protected confidence" - the meaning of "counsel", "counselling" and "counselling process" under ch 6 pt 5 div 2 of the Criminal Procedure Act 1986
Legislation Cited:	Criminal Procedure Act 1986
Cases Cited:	KS v Veitch (No 2) [2012] NSWCCA 266 R v Markarian [2012] NSWDC 197
Category:	Procedural and other rulings
Parties:	Director of Public Prosecutions (Crown) Bruce Russell (Accused) HS (Protected Confider)
Representation:	M Barr (Crown Prosecutor) D Clarke (Accused) P Skinner (Protected Confider)
File Number(s):	DC 2012/70684