Supreme Court
New South Wales
Medium Neutral Citation: R v Kelsall (No 3) [2015] NSWSC 253 Hearing dates: 2 March 2015 Decision date: 04 March 2015 Jurisdiction: Common Law Before: R A Hulme J Decision: Evidence of protected confidences admissible
Catchwords: CRIMINAL LAW – evidence – s 126B Evidence Act - admissibility of statements made to two medical practitioners – where statements amount to protected confidences – where evidence is highly probative – limitations of doctor/patient confidentiality where statements concern harm to others - public interest concerns mitigated – evidence admissible Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW)
Evidence Act 1995 (NSW)Cases Cited: R v Leung [2012] NSWSC 1451 Category: Procedural and other rulings Parties: Regina
Daniel Jack KelsallRepresentation: Counsel:
Solicitors:
Mr P McGrath SC (Crown)
Mr C Watson (Accused)
Solicitor for Public Prosecutions
Breton Legal Pty Limited
File Number(s): 2013/302108
Judgment
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HIS HONOUR: The accused, Daniel Jack Kelsall, has pleaded not guilty to the two counts on the indictment which allege that on 8 September 2013 at Neutral Bay he indecently assaulted and murdered Morgan Huxley.
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The Crown case is that after the accused had finished work as a kitchen hand late at night he followed the deceased from the Oaks Hotel at Neutral Bay to the deceased's nearby home in Watson Street. It is alleged that he entered the deceased's apartment and there, in the deceased's bedroom, committed the two offences. The deceased's flat mate was alerted to sounds coming from his bedroom. She went to investigate and found the deceased on the floor covered in blood. The immediate investigation established that he had died from the effects of multiple stab wounds.
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The issue with which this judgment is concerned is the admissibility of statements made by the accused to two people in the middle of 2012. It is common ground that the statements amount to "protected confidences": Ch 3 Pt 3.10 Div 1A of the Evidence Act 1995 (NSW). A court is empowered to exclude such evidence by s 126B, and must do so if satisfied of the matters in s 126B(3). For the purposes of the section, the court is required to take into account the matters listed in s 126B(4).
The protected confidences
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The statements are set out in exhibit A on the voir dire and they were identified within that exhibit at the places indicated by the Crown Prosecutor (2.3.15 at T4.25 - 4.35).
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The first statement (to Dr Susan Allman, general practitioner, on or about 15 May 2012) is to the following effect:
The accused said he had intrusive thoughts about killing people with a knife on the way home at night. He said there was no real reason for this and he had not thought about the consequences. He took a knife home late one night but he did not meet anyone.
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The second statement (to Dr Matthew Boulton, psychiatrist, on 6 June 2012) is to the following effect:
The accused said he had thought of killing…
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- AGLC
- R v Kelsall (No 3) [2015] NSWSC 253
- Case
- [2015] NSWSC 253
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether section 126B of the Evidence Act permitted the admission of the defendant's statements to the medical practitioners, given the statements were made in a context that could be considered a protected confidence. The court needed to balance the principles of doctor/patient confidentiality against the probative value of the statements and the public interest in the administration of justice. Specifically, the court had to assess whether the probative value of the statements outweighed any prejudice to the defendant and whether the public interest in admitting the evidence was sufficient to override the doctor/patient privilege.
The High Court held that the evidence was admissible. The court found that while doctor/patient confidentiality is a strong principle, it is not absolute. The statements in question were highly probative, concerning harm to others, and the public interest in their admission was significant. The court ruled that the probative value of the statements and the public interest in their admission outweighed the prejudice to the defendant. Consequently, the evidence was deemed admissible under section 126B of the Evidence Act. The decision underscores the limitations of doctor/patient confidentiality when the communications involve potential harm to others and highlights the court's role in balancing competing interests in the administration of justice.
Orders
Orders of the court
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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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