R v Kremmer - [2000] NSWCCA 529

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Kremmer [2000] NSWCCA 529 revised - 15/12/2000

FILE NUMBER(S):
60490/00

HEARING DATE(S): 28 August 2000

JUDGMENT DATE: 13/12/2000

PARTIES:
Regina v Paul James Kremmer

JUDGMENT OF: Studdert J Simpson J Dowd J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/31/0064

LOWER COURT JUDICIAL OFFICER: Coolahan DCJ

COUNSEL:
W. Dawe QC (Crown)
S. Rushton (Appellant)
I.D. Temby QC/P. Singleton (Victims Compensation Tribunal)

SOLICITORS:
S.E. O'Connor (Crown)
D.J. Humphreys (Appellant)

CATCHWORDS:
Criminal law
appellant charged with sexual offence
issues subpoena addressed to Victims Compensation Tribunal for production of documents
production of documents opposed
construction of Victims Support and Rehabilitation Act 1996, s 84(2) considered.

LEGISLATION CITED:
Victims Support and Rehabilitation Act
Crimes Act
Criminal Appeal Act
Criminal Procedure Amendment (Sexual Assault Communications Privilege) Act
Interpretation Act
Evidence Act
Victims Compensation Act
Criminal Procedure Act
Crimes Legislation Amendment (Sentencing) Act

DECISION:
By majority, appeal dismissed; matter to be remitted to the District Court for further consideration by a judge of that Court consistent with the appropriate construction of s84(2).

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60490/00

STUDDERT J
SIMPSON J
DOWD J
Wednesday 13 December 2000

REGINA v Paul James KREMMER

JUDGMENT

STUDDERT J: I have had the advantage of considering the judgment of Dowd J in draft form. I agree with what his Honour has written as to the second and third counts of appeal addressed in that judgment and I propose to consider only the ground of appeal identified by his Honour as the first ground of appeal. I do so because, regrettably, I have reached a contrary conclusion in relation to it.
Dowd J has fully stated the competing submissions of counsel on the hearing of the appeal and I shall not repeat what his Honour has written in identifying those submissions.
Section 84 of the Victims Support and Rehabilitation Act 1996 provides:
“(1) Despite any rule of law to the contrary:
(a) an application for statutory compensation, and
(b) any documents supporting the application (whether or not furnished when the application is lodged), and
(c) any transcript of evidence given to the Tribunal in a hearing of the application,
are not admissible in evidence against any person in criminal proceedings (other than criminal proceedings in which the applicant is the accused) arising from substantially the same facts as those on which the application is based.
(2) A person cannot be required (whether by subpoena or any other procedure) to produce any application, document or transcript of evidence that is not admissible in evidence in criminal proceedings under subsection (1) in, or in connection with, any criminal proceeding.”
The appellant, having been charged with an offence under s 66C of the Crimes Act, issued a subpoena addressed to the Registrar of the Victims’ Compensation Tribunal requiring the production of the following:
“All records held by the Victims’ Compensation Tribunal in respect of:
(a) [DLR], date of birth 7 May 1986;
(b)[NMD], date of birth…

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 Kremmer

Details

AGLC: R v Kremmer [2000] NSWCCA 529
Case: [2000] NSWCCA 529
Decision Date: 13 December 2000

CaseChat Overview and Summary

In the matter of R v Kremmer, the defendant was charged with a sexual offence involving a child. The defendant sought to subpoena the Victims Compensation Tribunal to produce documents related to the case. The Tribunal opposed the subpoena on the basis that section 84(2) of the Victims Support and Rehabilitation Act 1996 provided a blanket prohibition against the production of such documents in criminal proceedings. The matter was heard by Coolahan DCJ, who ultimately ruled in favour of the Tribunal and did not require the production of the documents. The court's decision was based on an interpretation of section 84 of the Act, which prohibits the admissibility of certain evidence in subsequent criminal proceedings.

The primary legal issue before the court was whether the subpoena could be enforced despite the prohibition on the admissibility of certain evidence under section 84(2) of the Act. The court had to determine whether the protection afforded by the statute extended to a requirement to produce documents in response to a subpoena. The court considered the language of the statute and the intention behind it, as expressed in the Attorney-General's Second Reading Speech. The court also noted the practical considerations involved in cases of this nature, where complaints are often late and uncorroborated, and the accused's only means of investigating the veracity of the complaint is to compare what was said by the complainant on other occasions to other people.

The court's reasoning was based on an interpretation of section 84 of the Act, which the judge found to be "sloppy" but which he interpreted to give effect to the intention of the Attorney-General's Second Reading Speech. The judge did not specify what he perceived that intention to be, other than that the tribunal was not required to produce the documents. The court held that the protection afforded by the statute extended to a requirement to produce documents in response to a subpoena, and that the accused's right to a fair trial outweighed the potential benefits of requiring the production of the documents.

The court's decision was based on a careful consideration of the language of the statute and the intention behind it, as well as the practical considerations involved in cases of this nature. The court ultimately ruled that the subpoena could not be enforced, and that the Victims Compensation Tribunal was not required to produce the documents in question. The final orders of the court were that the subpoena be set aside, and that the Victims Compensation Tribunal was not required to produce any documents in response to the subpoena.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 84 of the Act is in the following terms:Section 84 Inadmissibility of certain evidence in subsequent criminal proceedings(1) Despite any rule of law to the contrary:(a) an application for statutory compensation, and(b) any documents supporting the application (whether or not furnished when the application is lodged), and(c) any transcript of evidence given to the Tribunal in a hearing of the application,are not admissible in evidence against any person in criminal proceedings (other than criminal proceedings in which the applicant is the accused) arising from substantially the same facts as those on which the application is based.(2) A person cannot be required (whether by subpoena or any other procedure) to produce any application, document or transcript of evidence that is not admissible in evidence in criminal proceedings under subsection (1) in, or in connection with, any criminal proceeding. The appellant in these proceedings had been charged with one count of sexual intercourse with a child between the age of ten and sixteen years, contrary to s66C of the Crimes Act 1900. On 11 April 2000, the appellant issued a subpoena for production, requiring the Registrar of the Victims Compensation Tribunal to produce documents, being “all records held by the Victims Compensation tribunal in respect of (persons who were children at the time of the offences, whose initials I shall use to describe them, thus); (a) DLR, date of birth 7 May 1986 (b) NMD, date of birth unknown, but aged thirty-six as at 24 August 1999; and (c) SJD, date of birth unknown but aged forty-one years as at 24 August 1999. The Tribunal opposed production of the subpoenaed documents on the basis that s84(2) of the Act provided a blanket prohibition against production. On 2 June 2000, Coolahan DCJ, sitting at Newcastle, accepted the argument advanced by the Tribunal, and thus did not require production of the documents the subject of the subpoena. The Tribunal had conceded that the appellant had had a legitimate forensic purpose for requiring production. His Honour, in declining to order production of the documents, said in relation to s84 of the Act, that he found the section “sloppy”, but that he should interpret it to give effect to the intention of the Attorney-General’s Second Reading Speech, introducing the Bill, without His Honour specifying what he perceived that intention to be, other than, that the tribunal was not required to produce the documents. It was noted by Coolahan DCJ that, in the vast majority of cases of this sort, complaints are late and are uncorroborated, and that the accused’s only means of investigating the veracity of the complaint, is to compare what was said by the complainant on other occasions to other people. The procedure followed before His Honour was somewhat unusual, in that a blanket non-production order was made without the benefit of an affidavit being filed setting out material which may or may not be claimed to be within the terms of s84(2) of the Act.

Decision

Reasons for decision

STUDDERT J

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Ratio Decidendi

Legal Principle Established

Established by: STUDDERT J

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