R v Nash - [2021] ACTSC 169

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Nash
Citation:	[2021] ACTSC 169
Hearing Date:	27 July 2021
DecisionDate:	27 July 2021
Before:	Loukas-Karlsson J
Decision:	The prosecution is granted leave to disclose the protected confidence evidence contained in the Domestic Violence Crisis Service documents and the Canberra Rape Crisis Centre documents. The protected confidence evidence is admissible in the trial of the accused.
Catchwords:	CRIMINAL LAW – EVIDENCE – Evidence in sexual offence proceedings – application by the Crown for disclosure of a protected confidence – legitimate forensic purpose – whether court satisfied an arguable case – preliminary examination conducted – leave granted to disclose protected confidence
Legislation Cited:	Evidence Act 2011 (ACT) s 66 Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 79, 79A, 79D, 79E, 79F, 79G, 79H Legal Profession (Barristers) Rules 2021 (ACT)
Cases Cited:	R v Chute (No 5) [2019] ACTSC 52 R v NS [2016] ACTSC 346; 315 FLR 261 R v Sirl [2019] ACTSC 225 R v WR (No 2) [2009] ACTSC 110
Texts Cited:	Director of Public Prosecutions (ACT), The Prosecution Policy of the Australian Capital Territory (1 April 2021)
Parties:	The Queen (Crown) Sammual James Nash (Accused)
Representation:	Counsel A Chatterton (Crown) J Sabharwal (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Armstrong Legal (Accused)
File Number:	SCC 272 of 2020

LOUKAS-KARLSSON J:

Introduction

Sammual James Nash (the accused) is due to stand trial on 13 September 2021 on an indictment containing one count of an act of indecency without consent and two counts of sexual intercourse without consent. All three counts are alleged to have been committed against the accused’s former partner, NN (the complainant) on 7 February 2013.

The prosecution in this matter brought an application dated 20 July 2021 seeking leave to disclose to the accused documents that may amount to protected confidence evidence within the meaning of Div 4.4.3 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMP Act). The prosecution also sought an order that the protected confidence evidence be admissible in the trial proceeding. The application was brought so as to enable the prosecution to comply with its disclosure obligations.

Relevant Legislation

Division 4.4.3 of the EMP Act provides the relevant framework for the protection of counselling communications in sexual offence proceedings.

Section 79A of the EMP Act states the following:

79AMeaning of protected confidence—div 4.4.3
(1)For this division, a protected confidence is a counselling communication made by, to or about a person against whom a sexual offence was, or is alleged to have been, committed (the counselled person).
(2)A counselling communication is a protected confidence even if––
(a)it is made before the happening, or alleged happening, of the acts constituting the sexual offence; or

(b)it is not made in relation to––
(i) the sexual offence or any sexual offence; or
(ii)a condition arising from the sexual offence or any sexual offence.

(3)For this section, a counselling communication is a communication made in circumstances that give…

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 Nash

Details

AGLC: R v Nash [2021] ACTSC 169
Case: [2021] ACTSC 169
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, the prosecution applied for leave to disclose protected confidence evidence and for an order that the evidence be admissible in the trial of the accused. The accused was due to stand trial for one count of an act of indecency without consent and two counts of sexual intercourse without consent. The accused was alleged to have committed the offences against the complainant on 7 February 2013. The prosecution sought leave to disclose documents that may amount to protected confidence evidence within the meaning of Div 4.4.3 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMP Act). The application was brought to enable the prosecution to comply with its disclosure obligations. The prosecution submitted that the documents recorded a protected confidence. The Court was satisfied that the documents were protected confidence evidence within the definitions outlined in ss 79 and 79A of the EMP Act. The Court found that the prosecution had established a legitimate forensic purpose for seeking leave and that the public interest in ensuring the accused is given a fair trial outweighed the public interest in preserving the confidentiality of the protected confidence. The Court made an order that the prosecution was granted leave to disclose to the accused evidence of complaint recorded as a protected confidence in documents prepared by the Domestic Violence Crisis Service and documents prepared by the Canberra Rape Crisis Centre in respect of the complainant. The Court granted leave for the protected confidence evidence to be admissible in the trial of the accused on the indictment.

Orders