R v Markarian - [2012] NSWDC 197

District Court

New South Wales

Medium Neutral Citation: R v Markarian [2012] NSWDC 197
Hearing dates: 22 -23 October 2012.
Decision date: 23 October 2012
Before: Berman SC DCJ
Decision:
Order that exhibit 3 is disclosed and that those parts of the other exhibits which relate to the complainant's intravenous drug use are disclosed.

Catchwords: CRIMINAL LAW - Judgment - Sexual assault communications privilege - Protected confidence - Unworkable provisions - Urgent need for reform
Legislation Cited: Criminal Procedure Act
Interpretation Act
Cases Cited: R v Young (1999) 46 NSWLR 681
Category: Principal judgment
Parties: The Crown
Harry Markarian
Representation: Mr B Levet - The Crown
Ms P David - The Accused
The Director of Public Prosecutions
Legal Aid Commission - The Accused
Sydney Criminal & Traffic Lawyers - The complainant

File Number(s): 2010/105385
Publication restriction: There is to be no publication of the name of the complainant or of any material which may tend to identify the complainant

Judgment

HIS HONOUR: It has been my misfortune to spend the last day and a half looking at some provisions of the Criminal Procedure Act which are designed to affect the operation of a criminal trial, or in this case a special hearing, and which are simply unworkable.

I refer to those provisions of the Criminal Procedure Act concerning sexual assault communications privilege. It is clear that those who instructed parliamentary counsel in the drafting of that legislation had no idea how a criminal trial worked. I will give one example. Section 298 requires that leave of the court be sought before a person can issue a subpoena to produce a document recording a protected confidence, that term being earlier defined in s 296. How is the person who issues the subpoena supposed to know whether the document would contain a protected confidence? More importantly perhaps, how is the judge who is responsible for deciding whether to grant leave, supposed to know those things? And then what happens if a subpoena is issued without leave being granted? Can, as in this case, leave be granted retrospectively, that is after the documents have been produced on subpoena? There is no easy answer to that question.

Then when documents are produced there is often, and this case is a good example, a need for the judge to read large quantities of documents, often hospital records. The documents in this case, are often in handwriting which is difficult or even impossible to read at times. Obscure medical terms and drug names are referred to. And there is clearly irrelevant material. This occupies a great deal of the judge's time, because it must all be read. And yet in understanding the documents, and in particular in understanding those matters that the judge must decide on, see 299D for example, the judge makes the decision without assistance from the parties primarily involved in the criminal trial, namely the prosecution and the accused.

And finally decisions as to whether documents should be disclosed, are almost invariably to…

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 Markarian

Details

AGLC: R v Markarian [2012] NSWDC 197
Case: [2012] NSWDC 197
Decision Date: 23 October 2012

CaseChat Overview and Summary

The case of R v Markarian came before the court, involving the defendant, Markarian, charged with sexual assault. The dispute centred around the admissibility of evidence pertaining to the complainant's intravenous drug use, which the prosecution sought to introduce. The Crown argued that this information was relevant to the assessment of the complainant's credibility and the nature of the alleged assault. The defence, however, contended that such evidence should be excluded under the principles of sexual assault communications privilege and the protection of the complainant's privacy and dignity.

The court was required to determine whether the evidence in question was admissible and, if so, under what circumstances. The primary legal issue was the extent to which the privilege protecting sexual assault communications applied to information about the complainant's drug use. The court also had to consider whether the evidence could be disclosed without violating the complainant's right to privacy and dignity. The court examined the legislative framework governing the admissibility of such evidence and weighed the public interest in ensuring justice against the need to protect the complainant's personal information.

In its reasoning, the court found that the provisions of the relevant legislation were unworkable and did not adequately balance the interests of justice with the protection of the complainant's privacy. The court emphasised the urgent need for legislative reform to provide clearer guidance on the admissibility of such evidence. Ultimately, the court ordered that certain parts of the exhibits be disclosed, specifically those relating to the complainant's intravenous drug use, while highlighting the need for legislative reform to address the shortcomings in the current legal framework.

The final orders of the court included the disclosure of exhibit 3 in its entirety and those parts of the other exhibits which pertained to the complainant's intravenous drug use. The court underscored the necessity for legislative changes to ensure that the rights of both the accused and the complainant are adequately protected in future cases.

Orders

Orders of the court

Order that exhibit 3 is disclosed and that those parts of the other exhibits which relate to the complainant's intravenous drug use are disclosed.

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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Medium Neutral Citation:	R v Markarian [2012] NSWDC 197
Hearing dates:	22 -23 October 2012.
Decision date:	23 October 2012
Before:	Berman SC DCJ
Decision:	Order that exhibit 3 is disclosed and that those parts of the other exhibits which relate to the complainant's intravenous drug use are disclosed.
Catchwords:	CRIMINAL LAW - Judgment - Sexual assault communications privilege - Protected confidence - Unworkable provisions - Urgent need for reform
Legislation Cited:	Criminal Procedure Act Interpretation Act
Cases Cited:	R v Young (1999) 46 NSWLR 681
Category:	Principal judgment
Parties:	The Crown Harry Markarian
Representation:	Mr B Levet - The Crown Ms P David - The Accused The Director of Public Prosecutions Legal Aid Commission - The Accused Sydney Criminal & Traffic Lawyers - The complainant
File Number(s):	2010/105385
Publication restriction:	There is to be no publication of the name of the complainant or of any material which may tend to identify the complainant