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 - s108Cases Cited: KS v Veitch (No 2) [2012] NSWCCA 266
R v Markarian [2012] NSWDC 197
R v Bruce Russell [2013] NSWDC 129Category: Procedural and other rulings Parties: The Crown
Nicolino GuerreraRepresentation: Counsel:
Solicitors:
Mr. Metcalfe (Counsel for DPP)
Mr. Hogan (Counsel for defence)
Ms. Munn (DPP Solicitor)
Ms. Orsini (Defence solicitor)
File Number(s): 2013/256112
Decision
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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.
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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.
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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.
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As I understand it, the complainant made a formal complaint to police about these offences…
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- Case
- [2014] NSWDC 347
- Decision Date
CaseChat Overview and Summary
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
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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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