R v NS - [2016] ACTSC 346

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v NS
Citation:	[2016] ACTSC 346
Hearing Date:	Application In Chambers
DecisionDate:	25 November 2016
Before:	Burns J
Decision:	See [42]
Catchwords:	CRIMINAL LAW – Particular Offences – offences against the person – acts of indecency on a child under age of 10 years –sexual abuse disclosed after significant time elapsed – complainant underwent treatment for mental health issues. EVIDENCE – Evidence in Sexual and Violent Offence Proceedings – application by accused for protected confidences to be disclosed – legitimate forensic purpose identified – preliminary examination conducted – whether s 61 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) “gateway” provision.
Legislation Cited:	Criminal Procedure Act 1986 (NSW) ss 298, 299D Evidence Act 1906 (WA) ss 19C, 19E Evidence (Miscellaneous Provisions) Act 1958 (VIC) s 32C Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 55, 58, 59, 60, 61, 62, 63 Evidence (Miscellaneous Provisions) Amendment Act 2003 (ACT) Evidence Act 1929 (SA) s 67F Human Rights Act 2004 (ACT) s 21
Cases Cited:	ER v Khan [2015] NSWCCA 230 In the matter of an application by Donald FrancisMcInnes [2009] ACTSC 29; 194 A Crim R 377 PPC v Williams [2013] NSWCCA 286; 238 A Crim R 25 Question of Law Resolved (No 1 of 2000) [2000] SASC 205; 77 SASR 344 R v Basham [2009] ACTSC 142 R v O’Rafferty [2016] ACTSC 141 R vWR (No 2) [2015] ACTSC 199 Momcilovic v The Queen [2011] HCA 34; 245 CLR 1
Texts Cited:	Explanatory Statement, Evidence (Miscellaneous Provisions) Amendment Act 2003 (ACT)
Parties:	NS (Applicant) The Queen (Respondent)
Representation:	Solicitors Ben Aulich & Associates (Applicant) ACT Director of Public Prosecutions (Respondent)
File Number:	SCC 52 of 2016

BURNS J:

The accused is charged with two counts of committing an act of indecency on a person under the age of 10 years. The complainant is his biological daughter. The events which give rise to the charges are alleged to have occurred in August 2004, around the time of the complainant’s sixth birthday.

The complainant is now 18 years old. She has suffered significant mental health issues since 2004. In October 2004, police conducted an interview with her due to concerns that she had been sexually abused. In that interview the complainant did not disclose any sexual abuse. The complainant underwent treatment for her mental health issues over many years. It was not, as I understand it, until January 2015, when she was 16 years old, that the complainant disclosed to her mother and step-father that the accused had sexually abused her when she was 5 or 6 years old.

The accused pleaded not guilty to the charges and is awaiting trial. By an application in proceedings dated 20 July 2016 the accused sought orders pursuant to s 58 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the Act) that he be granted leave to issue subpoenas compelling the disclosure of protected confidences to a number of…

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 NS

Details

AGLC: R v NS [2016] ACTSC 346
Case: [2016] ACTSC 346
Decision Date: 25 November 2016

CaseChat Overview and Summary

The matter of R v NS came before the court involving a prosecution for acts of indecency committed on a child under the age of 10 years. The events in question were alleged to have occurred several years prior, with the complainant subsequently undergoing treatment for mental health issues. The case was heard in the relevant court where the defence sought disclosure of protected confidences under the Evidence (Miscellaneous Provisions) Act 1991 (ACT).

The central legal issue was whether the court should grant the accused's application for the disclosure of protected confidences, specifically those held by mental health professionals, to be used for a legitimate forensic purpose. The accused argued that the disclosure was necessary to properly challenge the credibility of the complainant, given the mental health treatment she had received. The court was required to balance the accused's right to a fair trial with the need to protect the confidentiality of the complainant's mental health records.

In considering the application, the court examined the statutory "gateway" provision under section 61 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). The court found that the accused had identified a legitimate forensic purpose for the disclosure, as the records could be relevant to the complainant's credibility and mental state at the time of the alleged offences. The court conducted a preliminary examination to determine if the disclosure was warranted, ultimately deciding that the disclosure was necessary for a fair trial. The court concluded that the statutory provision was applicable and granted the application for disclosure.

The court ordered that the protected confidences be disclosed to the accused for the specified legitimate forensic purpose, as outlined in the application. The decision ensured that the accused could properly challenge the credibility of the complainant while respecting the need to protect the complainant's privacy and confidentiality.

Orders

Orders of the court

See [42]

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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