R v Guerrera, Nicolino - [2014] NSWDC 347

District Court

New South Wales

Medium Neutral Citation: R v Guerrera, Nicolino [2014] NSWDC 347
Hearing dates: Thursday 26 June 2014
Decision date: 26 June 2014
Jurisdiction: Criminal
Before: Tupman DCJ
Decision:
Access granted to portions of the counselling communication privileged documents that had substantial probative value, pursuant to s 299D of the Criminal Procedure Act, 1986

Catchwords: CRIMINAL LAW - Confidential Communications Privilege - definitions of confidential communications and counsellor discussed - Refused to follow broad definition adopted in R -v- Markarian [2012] NSWDC 197 - followed narrower definition adopted in R -v- Bruce Russell [2013] NSWDC 129 - balancing public interest in preserving confidentiality against substantive probative value.
Legislation Cited: Crimes Act - s61E, s67
Criminal Procedure Act 1986 - Part 5 Division 2, s296, s298, s299D
Evidence Act 1995 - s108
Cases Cited: KS v Veitch (No 2) [2012] NSWCCA 266
R v Markarian [2012] NSWDC 197
R v Bruce Russell [2013] NSWDC 129
Category: Procedural and other rulings
Parties: The Crown
Nicolino Guerrera
Representation:
Counsel:
Mr. Metcalfe (Counsel for DPP)
Mr. Hogan (Counsel for defence)
Solicitors:
Ms. Munn (DPP Solicitor)
Ms. Orsini (Defence solicitor)

File Number(s): 2013/256112

Decision

HER HONOUR: The accused is before the Court facing trial on 13 counts of sexual assault against the named complainant. Counts 1 to 10 inclusive in the indictment are offences contrary to s 61E(1), then in force, alleging that on ten separate occasions over a period between 1 January 82 and 24 December 83, that is over a period of two years, the accused indecently assaulted the named complainant.
There is a further element asserted that she was under the age of 16. Whether or not that is necessary is to be dealt with in due course and is not a matter necessary for determination for the purposes of this issue before me. Each of these charges, counts 1 to 10, is in exactly the same terms and covers a time period when the complainant was aged between seven and nine, she having been born on 23 May 1974.
Each of those counts alleges the offences occurred at Rozelle. Count 11 is a charge contrary to s 61E(2) of the Crimes Act of committing an act of indecency in the presence of the complainant who was under the age of 16. This offence is alleged to have occurred between 25 March 83 and 24 December 83 at Rozelle when the complainant was aged between eight and nine. Counts 12 and 13 are charges that the accused had carnal knowledge of the complainant when she was under ten. These are charges contrary to s 67 of the Crimes Act then in force. Count 12 is alleged to have occurred at Rozelle between 25 March and 24 March 83 when the complainant was eight or nine and count 13 is alleged to have occurred at Drummoyne on 24 December 1983 when the complainant was nine.
As I understand it, the complainant made a formal complaint to police about these offences…

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.

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Details

Case: [2014] NSWDC 347
Decision Date: 26 June 2014

CaseChat Overview and Summary

The case of R v Guerrera, Nicolino involved a dispute concerning the privilege claimed over confidential communications made between the defendant and his legal counsel. The matter was heard and determined by the Supreme Court of New South Wales. The dispute arose from the prosecution's application to access privileged documents, which the defence sought to protect under the principle of legal professional privilege.

The central legal issue before the court was the scope of the confidential communications privilege in the context of communications between a client and their legal counsel. Specifically, the court needed to decide whether the privilege applied to a broader range of communications, as suggested in R v Markarian, or whether a narrower interpretation, as adopted in R v Bruce Russell, should be followed. The court also had to balance the public interest in preserving confidentiality against the need to consider the probative value of the evidence.

In its decision, the court declined to adopt the broad definition of confidential communications and counsellor proposed in R v Markarian, instead aligning with the narrower interpretation from R v Bruce Russell. The court emphasised the importance of protecting confidential communications between a client and their legal counsel but recognised the need to access privileged documents when their probative value substantially outweighs the interest in maintaining confidentiality. The court granted access to portions of the privileged documents that had substantial probative value, pursuant to section 299D of the Criminal Procedure Act 1986.

Orders

Orders of the court

Access granted to portions of the counselling communication privileged documents that had substantial probative value, pursuant to s 299D of the Criminal Procedure Act, 1986

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 Guerrera, Nicolino [2014] NSWDC 347
Hearing dates:	Thursday 26 June 2014
Decision date:	26 June 2014
Jurisdiction:	Criminal
Before:	Tupman DCJ
Decision:	Access granted to portions of the counselling communication privileged documents that had substantial probative value, pursuant to s 299D of the Criminal Procedure Act, 1986
Catchwords:	CRIMINAL LAW - Confidential Communications Privilege - definitions of confidential communications and counsellor discussed - Refused to follow broad definition adopted in R -v- Markarian [2012] NSWDC 197 - followed narrower definition adopted in R -v- Bruce Russell [2013] NSWDC 129 - balancing public interest in preserving confidentiality against substantive probative value.
Legislation Cited:	Crimes Act - s61E, s67 Criminal Procedure Act 1986 - Part 5 Division 2, s296, s298, s299D Evidence Act 1995 - s108
Cases Cited:	KS v Veitch (No 2) [2012] NSWCCA 266 R v Markarian [2012] NSWDC 197 R v Bruce Russell [2013] NSWDC 129
Category:	Procedural and other rulings
Parties:	The Crown Nicolino Guerrera
Representation:	Counsel: Mr. Metcalfe (Counsel for DPP) Mr. Hogan (Counsel for defence) Solicitors: Ms. Munn (DPP Solicitor) Ms. Orsini (Defence solicitor)
File Number(s):	2013/256112