R v ED

Case [2022] NSWDC 142

District Court


New South Wales

Medium Neutral Citation: R v ED [2022] NSWDC 142
Hearing dates: 27 April 2022
Date of orders: 3 May 2022
Decision date: 03 May 2022
Jurisdiction:Criminal
Before: Abadee DCJ
Decision:

See paragraph 114

Catchwords:

CRIMINAL LAW – procedure – alleged historical sex offences – documents produced on subpoena relating to a complainant – sexual assault communications privilege - whether leave should be granted to accused to access privileged documents

Legislation Cited:

Court Suppression and Non-Publication Orders Act 2010 (NSW) s 8(1)(a)

Criminal Procedure Act 1986 (NSW) ss 293, 295, 296, 298, 299, 300

Cases Cited:

ER v Khan [2015] NSWCCA 230

KS v Veitch(No.2) (2012) 300 ALR 181

NAR v PPC1 [2013] NSWCCA 25

PPC v Stylianou [2018] NSWCCA 300

PPC v Williams (2013) 224 A Crim R 555

Texts Cited:

J Brett, The Enigmatic Mr Deakin (2017)

Category:Principal judgment
Parties: Office of the Director of Public Prosecutions
Mr ED (accused)
Principal Protected Confider (PPC)
Representation:

Counsel:
Mr M Gleeson for the ODPP
Ms S Jeliba for the accused

Solicitors:
Ms E Blackburn for the ODPP
Ms C Chua for the accused
Mr E Hulme for the PPC
File Number(s): 2020/00147592
Publication restriction: Name of accused and PPC anonymised pursuant to s 8(1)(a) of the Court Suppression and Non-Publication Orders Act 2010 (NSW)

Judgment

  1. The accused[1] is charged on indictment of multiple historical sexual assault offences against multiple complainants going back to the 1970s and 1980s. Two of the charges relate to one particular complainant in relation to two distinct alleged sexual assaults occurring in the discrete periods between 1 September 1986 and 31 December 1986 and between 1 July 1987 and 31 July 1987.

    1. By consent, the accused’s name has been anonymised on the ground that publication may be prejudicial to the administration of justice, having regard to the possibility of potential jurors accessing and reading the judgment and also the implicit identification of the PPC’s identity: Court Suppression and Non-Publication Orders Act 2010 (NSW) s 8(1)(a).

  2. Through the course of the criminal proceeding, the accused obtained access to documentation which, putting the matter very broadly, indicated that this particular complainant has had issues concerning her mental health. The accused wishes to investigate aspects relating to the diagnoses and treatment of that complainant’s mental health condition.

  3. By a notice of motion filed 10 March 2022, the accused applied for leave under s 298 of the Criminal Procedure Act 1986 (NSW) (the ‘CP Act’) to issue subpoenas to various entities to produce documents regarding that complainant, broadly to do with her mental health conditions and treatment of them. On 4 April 2022 the accused’s application was heard before Pickering DCJ. Leave was granted by the Court to issue subpoenas to:

  1. NSW Police;

  2. Queensland Police;

  3. Dr Gregory McKeough (a treating psychiatrist); and

  4. The Cairns and Hinterland Hospital and Health Service (CHHHS).

  1. Mr Hulme, who appeared for the complainant on the present application, did not object to the accused’s access to documents produced…

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R v ED [2022] NSWDC 142
Case
[2022] NSWDC 142
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Victoria, the case of R v ED was heard, where the accused was charged with various historical sex offences. The central issue in the case revolved around the accused's access to certain documents produced on a subpoena relating to a complainant. These documents pertained to communications between the complainant and a third party, which were subject to a sexual assault communications privilege. The court was required to decide whether leave should be granted to the accused to access these privileged documents.

The legal issue before the court was whether the privilege claimed by the complainant outweighed the public interest in the accused being able to access the documents to properly prepare their defence. The court considered the nature of the privilege, the circumstances in which the communications were made, and the potential impact on the fairness of the trial if the accused were denied access to the documents. The court also examined the relevance of the documents to the accused's defence and the potential prejudice to the complainant if the privilege were to be waived.

In reaching its decision, the court found that the sexual assault communications privilege was not absolute and could be overridden where the public interest in ensuring a fair trial outweighed the private interest of the complainant. The court determined that the documents in question were relevant to the accused's defence and that the potential prejudice to the complainant was not insurmountable. Consequently, the court granted the accused leave to access the privileged documents. The court emphasised the importance of balancing the competing interests and ensuring that the trial remained fair to both parties.

The final orders of the court were that leave was granted to the accused to access the documents produced on the subpoena relating to the complainant, subject to certain conditions to protect the complainant's privacy and safety. The court also issued directions for the handling and disclosure of the privileged documents to ensure that the trial proceeded in a manner that was just and fair to both parties.

Orders

Orders of the court

See paragraph 114

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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