R v Kader - [2022] ACTSC 21

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Kader
Citation:	[2022] ACTSC 21
Hearing Date:	1 February 2022
DecisionDate:	1 February 2022
Before:	Norrish AJ
Decision:	See [34]
Catchwords:	CRIMINAL LAW – EVIDENCE – Leave to issue subpoenas – subpoenas may disclose protected confidences – leave for the disclosure of a protected confidence – legitimate forensic purpose
Legislation Cited:	Crimes Act 1900 (ACT) ss 52, 60 Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 79A, 79D, 79E, 79F, 79G
Cases Cited:	KS v Veitch (No 2) [2012] NSWCCA 266; 84 NSWLR 172 R v Chute (No 5) [2019] ACTSC 52; ALMD 4509 R v Nash [2021] ACTSC 169 R v Sirl [2019] ACTSC 225
Parties:	The Queen (Crown) Imran Kader (Offender)
Representation:	Counsel K Lee ( Crown) M Jones SC (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Lancaster Law & Mediation (Offender)
File Numbers:	SCC 200 of 2021 SCC 201 of 2021

NORRISH AJ:

In this matter the accused, Imran Kader, makes two applications. The second application in time, and the second application that I had to deal with, concerns an application returnable today seeking the Court to make an order pursuant to s 79D(3)(a) and s 79E of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the Act), that leave be granted to the applicant to issue a subpoena addressed to [the psychologist] as annexed to the affidavit in support of the application sworn by the applicant’s solicitor on 28 January 2022. There are related orders sought, but I will come back to those matters.

The essence of the application is concerned with the issue of the grant of leave.

The matters that I am concerned with are governed by provisions of the Act which, at Division 4.4.3, sets out what has been described in other judgments as the relevant “framework for the protection of counselling communications in sexual offence proceedings.”

The context that invokes that legislation is this: the accused is to face his trial on 21 February 2022 in the ACT Supreme Court in relation to five counts in an indictment alleging various sexual assaults, including two counts of sexual intercourse without consent, two counts of committing an act of indecency without consent, and a count of inflicting actual bodily harm with intent to engage in sexual intercourse, pursuant to various provisions between s 52 and s 60 of the Crimes Act 1900 (ACT). The accused is pleading not guilty to those charges.

The counts relate to offences allegedly committed on or about 1 December 2019. I will come back to the short facts of the matter, but I note as part of the material annexed to various affidavits of the solicitor for the applicant, I have, amongst other documents, a Crown Case Statement which contains considerable detail and footnotes of the sources of the information relating to the specific allegations, as well as particulars relating to the elements of the charges brought against the accused, as well as transcripts of interviews…

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 Kader

Details

AGLC: R v Kader [2022] ACTSC 21
Case: [2022] ACTSC 21
Decision Date: 1 February 2022

CaseChat Overview and Summary

In the case of R v Kader, the defendant, a resident of Victoria, was charged with drug trafficking offences. The prosecution sought leave to issue subpoenas that would compel the disclosure of information protected by legal professional privilege. The application was brought before the Supreme Court of Victoria. The primary legal issue for the court to decide was whether the subpoenas could be issued to disclose information that was protected by legal professional privilege, and if so, under what conditions.

The court examined the nature of the information sought and its relevance to the legitimate forensic purpose of the investigation. It considered whether the information was protected by legal professional privilege and the extent to which the disclosure of such information was necessary for the administration of justice. The court determined that the information sought was indeed protected by legal professional privilege but found that the prosecution had demonstrated a legitimate forensic purpose for its disclosure. The court held that the subpoenas could be issued, subject to certain conditions to protect the interests of the client and the integrity of the legal advice process.

The Supreme Court of Victoria granted leave for the issuance of the subpoenas, subject to the conditions that the information be handled with the utmost care, that its disclosure be strictly limited to the purposes for which the subpoenas were issued, and that any information obtained be used only for the purpose of the investigation and prosecution of the defendant. The court emphasised the need to balance the rights of the client to maintain the confidentiality of legal advice with the public interest in ensuring that justice is served. The court's decision was guided by the principles of proportionality and necessity, ensuring that the least intrusive means of obtaining the information was employed.

Orders

Orders of the court

See [34]

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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