R v Kelsall (No 3) - [2015] NSWSC 253

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 Kelsall
Representation:
Counsel:
Mr P McGrath SC (Crown)
Mr C Watson (Accused)
Solicitors:
Solicitor for Public Prosecutions
Breton Legal Pty Limited

File Number(s): 2013/302108

Judgment

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.
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.
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

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).
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.

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…

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 Kelsall (No 3)

Details

AGLC: R v Kelsall (No 3) [2015] NSWSC 253
Case: [2015] NSWSC 253
Decision Date: 04 March 2015

CaseChat Overview and Summary

The case of R v Kelsall (No 3) involved a criminal defendant who was prosecuted for serious drug offences. The dispute centred on the admissibility of statements the defendant had made to two medical practitioners, which were sought to be admitted under section 126B of the Evidence Act. The High Court of Australia was tasked with determining whether these statements could be admitted into evidence despite the doctor/patient privilege typically protecting such communications.

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