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R v QX (No 3)

R v QX (No 3)

Case [2021] ACTSC 245 28 September 2021

Jurisdiction

Protected Confidence

Legitimate Forensic Purpose

Credit of Witness

Criminal Law

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v QX (No 3)
Citation:	[2021] ACTSC 245
Hearing Date:	18 December 2020
DecisionDate:	28 September 2021
Before:	Loukas-Karlsson J
Decision:	See [55]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – subpoenas – subpoena issued by accused – prosecution application to set aside subpoena – protected confidence – s 126B of the Evidence Act 2011 (ACT) – s 131A of the Evidence Act 2011 (ACT) – whether legitimate forensic purpose – whether fishing expedition – whether nature and extent of harm of allowing subpoena outweighs the desirability of evidence being presented
Legislation Cited:	Court Procedure Rules 2006 (ACT) rr 6604, 6609 Crimes Act 1900 (ACT) ss 55, 61, 66 Evidence Act 2011 (ACT) div 3.10.1A, ss 126A, 126B, 131A, 165 Evidence (Miscellaneous Provisions) Act 1991 (ACT) div 4.4.3, s 79A
Cases Cited:	Alister v The Queen (1984) 154 CLR 404 Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667 Desane Properties Pty Ltd v New South Wales [2018] NSWSC 173 DPP v Warren [2015] ACTSC 111 Elmaraazey v Capital Lawyers Pty Ltd [2016] ACTSC 54 GB v Greater Western Sydney Area Service [2010] NSWSC 181 Hunt v Warks & Ors (1985) 40 SASR 489 Instyle Estate Agents Gungahlin Pty Ltd v Hambrook(No 2) [2020] ACTSC 293 Ku-ring-gai Council v West [2017] NSWCA 54; 95 NSWLR 1 Liristis v Gadelrabb [2009] NSWSC 441 Llewellyn v Finn & Collins (1994) 116 FLR 211; 74 A Crim R 519 Maddison v Goldrick [1976] 1 NSWLR 651 Portal Software v Bodsworth [2005] NSWSC 1115 R v Charlton [1972] VR 758 R v Polley (1997) 68 SASR 227 R v QX [2021] ACTSC 187 R v Saleam (1989) 16 NSWLR 14 R v Woutersz (No 1) [2016] ACTSC 396 R v Woutersz (No 2) [2016] ACTSC 397 Ragg v Magistrates’ Courtof Victoria [2008] VSC 1; 18 VR 300 Sankey v Whitlam (1978) 142 CLR 1 Trade Practices Commissioner v Arnotts Limited (1989) 21 FCR 306; 88 ALR 90 TransGrid v Members of Lloyds Syndicate 3210 [2011] NSWSC 301 United States v Zadeh (5^th Cir, No 15-10195, 31 January 2015) Waind v Hill and National Employers’ Mutual General Association [1978] 1 NSWLR 372
Texts Cited:	Association of American Physicians and Surgeons, ‘Amicus Curiae Brief of the Association of American Physicians and Surgeons in Support of the Respondent-Appellant Abbas T.Zadeh, In Support of Reversal’, submission in United States v Zadeh (5^th Cir, No 15-10195) 13 July 2015 Australian Medical Association, ‘Ethical Guidelines for Disclosing Medical Records to Third Parties 2010 (revised 2015)’ Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 16^th ed, 2021)
Parties:	The Queen (Crown) QX (Accused)
Representation:	Counsel S Jerome ( Crown) J Pappas ( Accused)
Solicitors ACT Director of Public Prosecutions ( Crown) Aulich Criminal Law (Accused)
File Number:	SCC 58 of 2020

LOUKAS-KARLSSON J:

Introduction

QX (the accused) initially filed a subpoena to produce documents addressed to The Proper Officer…

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 QX (No 3)

Details

AGLC: R v QX (No 3) [2021] ACTSC 245
Case: [2021] ACTSC 245
Decision Date

CaseChat Overview and Summary

In R v QX (No 3), the accused filed a subpoena seeking medical records relating to the complainant's attendance at the Canberra Hospital on 12 July 2019. The prosecution applied to have the subpoena set aside on various grounds, including that the subpoena sought privileged material and served no legitimate forensic purpose. The accused argued that the subpoena served a legitimate forensic purpose and sought documents necessary for a fair trial. The court considered the legal principles and legislative regime applicable to subpoenas and protected confidences, including sections 126A, 126B, 131A, and 165 of the Evidence Act 2011 (ACT) and section 79A of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). The court found that the subpoena did not constitute a fishing expedition and served a legitimate forensic purpose. While the documents sought may meet the definition of a protected confidence under the Evidence Act, the court declined to determine the application of section 126B of the Evidence Act at the subpoena stage. The court dismissed the prosecution's application to set aside the subpoena but gave the parties liberty to approach chambers for orders regarding inspection of the subpoenaed documents.

Orders