R v Reitberger - [2014] NSWDC 154

District Court

New South Wales

Medium Neutral Citation: R v Reitberger [2014] NSWDC 154
Hearing dates: 28 April 2014 - 30 April 2014
Decision date: 01 May 2014
Jurisdiction: Criminal
Before: Williams ADCJ
Decision:
Application to exclude evidence of two telephone calls is dismissed

Catchwords: CRIMINAL LAW - judgment - Application to exclude evidence from the jury - Pretext conversations - Admissibility of - Sexual allegations
Legislation Cited: Evidence Act
Surveillance Devices Act 2007
Listening Devices Act 1984
Cases Cited: DJS v R; NS v R (2012) NSWCCA 9
Duke v R (1989) CLR 508 at 513
Employment Advocate v Williamson 2001 FCA 1164
Juric v R (2002) 199 A Crim R 408
Pavitt v R [2007] NSWCCA 88
R v Broyles [1991] 3 SCR 595
R v Burton [2013] NSWCCA 335
R v LDV (No 2) [2013] NSWDC 215
R v Swaffield; Pavic v R 192 CLR 159
R v XY (2013) NSWCCA 121
WK v R [2011] VSCA 345
Category: Procedural and other rulings
Parties: The Crown
Claude Reitberger
Representation: Counsel:
Ms D D'Aleo - The Crown
Mr P Strickland SC - The accused
Mr Hunt - The Accused
Solicitors:
Director of Public Prosecutions

File Number(s): 2012/371680
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: In this matter the complainant in the sexual assault trial was a patient of the accused who at the time was a medical practitioner in a practice at Burwood. The complainant had apparently seen the accused some years before but the consultation on 13 June 2012 was entirely coincidental. The complainant alleges that at this visit the accused masturbated him, rubbed his perineum and anal area and inserted his finger in his anus. The accused is charged with two counts of indecent assault and one count of sexual intercourse without consent.

Whilst there is no dispute that the complainant had a consultation with the accused on the day in question, the assaults are denied and the significant issue in the case as I understand it is going to be whether or not what occurred to the complainant was as a result of an examination for a proper medical purpose.

Apart from the alleged admissions made by the accused to the complainant in a lawfully recorded telephone conversation, the only evidence in the Crown case is the complainant's own evidence and evidence of early complaint to a number of other people.

The defence seeks to have the telephone conversations excluded from the jury. I will refer to these what have been called "pretext" conversations as call 1 and call 2. Call 1 was made on 2 November 2012 at about 1.30pm and lasted about four and a half minutes. Call 2 was made on the same day at 1.55pm and is somewhat longer. Both were recorded and the transcripts are available.

Mr Strickland SC for the defence seeks to have these conversations excluded under…

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 Reitberger

Details

AGLC: R v Reitberger [2014] NSWDC 154
Case: [2014] NSWDC 154
Decision Date: 01 May 2014

CaseChat Overview and Summary

The case of R v Reitberger involved a defendant who was facing criminal charges. The nature of the dispute was the admissibility of certain evidence, specifically two telephone calls, that the prosecution sought to introduce during the trial. The matter was heard in the Supreme Court of New South Wales.

The central legal issue before the court was whether the evidence of the two telephone calls was relevant and admissible for the jury to consider. The defence argued that the conversations were not pertinent to the charges and that their introduction would serve only to prejudice the defendant. The prosecution, on the other hand, maintained that the content of these calls was relevant to the allegations of sexual misconduct against the defendant and thus should be heard by the jury.

In delivering the judgment, the court considered the relevance of the evidence to the charges and the potential for it to cause prejudice to the defendant. The court found that the content of the telephone conversations did indeed relate to the sexual allegations and therefore held that the evidence was relevant and admissible. The court dismissed the application to exclude the evidence from the jury, ruling that the probative value of the conversations outweighed any prejudicial effect they might have. Consequently, the application to exclude the evidence of the two telephone calls was dismissed.

Orders

Orders of the court

Application to exclude evidence of two telephone calls is dismissed

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 Reitberger [2014] NSWDC 154
Hearing dates:	28 April 2014 - 30 April 2014
Decision date:	01 May 2014
Jurisdiction:	Criminal
Before:	Williams ADCJ
Decision:	Application to exclude evidence of two telephone calls is dismissed
Catchwords:	CRIMINAL LAW - judgment - Application to exclude evidence from the jury - Pretext conversations - Admissibility of - Sexual allegations
Legislation Cited:	Evidence Act Surveillance Devices Act 2007 Listening Devices Act 1984
Cases Cited:	DJS v R; NS v R (2012) NSWCCA 9 Duke v R (1989) CLR 508 at 513 Employment Advocate v Williamson 2001 FCA 1164 Juric v R (2002) 199 A Crim R 408 Pavitt v R [2007] NSWCCA 88 R v Broyles [1991] 3 SCR 595 R v Burton [2013] NSWCCA 335 R v LDV (No 2) [2013] NSWDC 215 R v Swaffield; Pavic v R 192 CLR 159 R v XY (2013) NSWCCA 121 WK v R [2011] VSCA 345
Category:	Procedural and other rulings
Parties:	The Crown Claude Reitberger
Representation:	Counsel: Ms D D'Aleo - The Crown Mr P Strickland SC - The accused Mr Hunt - The Accused Solicitors: Director of Public Prosecutions
File Number(s):	2012/371680
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