R v RT - [2024] NSWDC 116

District Court

New South Wales

Medium Neutral Citation: R v RT (No 1) [2024] NSWDC 116
Hearing dates: 4, 5, 11 and 15 April 2024
Date of orders: 15 April 2024
Decision date: 15 April 2024
Jurisdiction: Criminal
Before: Sutherland SC DCJ
Decision:
[85] – [97]

Catchwords:
CRIMINAL PROCEDURE — Sexual assault communications privilege — Applications for leave
CRIMINAL PROCEDURE — Subpoena — Objection to production of material — Sexual assault communications privilege — Applications for leave under section 299D of the Criminal Procedure Act 1986 (NSW)
CRIMINAL PROCEDURE — Sexual offence proceedings — Admissibility of evidence related to sexual experience — Applications for leave to cross-examine under section 294CB(4) of the Criminal Procedure Act 1986 (NSW)

Legislation Cited:
Crimes Act 1900 (NSW)
Criminal Procedure Act 1986 (NSW) ss 294CB, 298, 299B, 299D

Cases Cited:
Jackmain (a pseudonym) v R (2020) 102 NSWLR 847; [2020] NSWCCA 150
KS v Veitch (No 2) (2012) 84 NSWLR 172; [2012] NSWCCA 266
NAR v PPC1 [2013] NSWCCA 25; (2013) 224 A Crim R 535
Rohan v R [2018] NSWCCA 89
M v R (1993) 67 A Crim R 549
R v Bernthaler NSWCCA (60394/1993; Unreported 17 December 1993)
R v Burton [2013] NSWCCA 335; (2013) 237 A Crim R 238
R v White (1989) 18 NSWLR 332
Valentine v R [2023] NSWCCA 43

Texts Cited:
Nil

Category: Procedural rulings
Parties: Rex (Crown)
RT (Accused)
Principal Protected Confider
Representation:
Counsel:

E Winborne (Solicitor-Advocate) (Crown)
G.D. Wendler (Accused)
E Hulme & R Gilbert (Principal Protected Confider)

Solicitors:
Director of Public Prosecutions (NSW) (Crown)
Kennedy Vinciullo (Accused)
Legal Aid Commission of NSW (Principal Protected Confider)

File Number(s): 2023/00040675
Publication restriction: Pursuant to section 578A of the Crimes Act 1900 (NSW), there is to be no publication of a name that identifies or is likely to lead to the identification of the complainant.

JUDGMENT

The accused, RT, is before the court with respect to 6 counts on indictment alleging sexual assaults committed by him with his sister when she was variously between the ages of 10 and 14 years some 30 to 34 years ago.
The indictment originally presented contained 7 counts. As a result of a recent and additional statement being taken from the complainant, the Director of Public Prosecutions has discontinued proceedings with respect to the original Count 1 and a fresh indictment containing the current 6 counts has been presented.
Prior to the commencement of the trial before a jury, the court has entertained two separate applications brought by the accused.
The first application, brought by Notice of Motion dated 19 March 2024, sought leave to issue a subpoena to a psychologist who had consulted with the complainant with respect to the allegations brought by her.
The proposed subpoena sought to obtain clinical notes and records relating to allegations raised by the complainant of historical sexual assaults against her committed by both her brother RT, and also by another brother who she nominated. The proposed subpoena also sought any records…

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 RT

Details

AGLC: R v RT [2024] NSWDC 116
Case: [2024] NSWDC 116
Decision Date: 15 April 2024

CaseChat Overview and Summary

The appellant, RT, was charged with several sexual offences, including aggravated sexual assault in company. RT applied for leave to adduce certain evidence and to object to the production of specific material on the basis of the sexual assault communications privilege. The District Court of New South Wales heard the application, which was subsequently dismissed. The appellant appealed to the Supreme Court of New South Wales, which was heard by Hamill J. The court had to determine whether certain evidence could be excluded from the trial under the sexual assault communications privilege and whether the appellant was entitled to cross-examine a witness on her sexual experience.

The court considered whether the communications between the complainant and her friends were protected by the sexual assault communications privilege. The privilege was established to protect the privacy and encourage reporting of sexual offences. The court found that the communications were not privileged because they were made after the alleged offence, did not pertain directly to the sexual activities complained of, and were made with the intention of seeking advice about potential legal proceedings. Regarding the cross-examination of the complainant on her sexual experience, the court held that the evidence was not relevant to the issues in the case, and therefore, the appellant was not entitled to cross-examine the complainant on her sexual history.

Hamill J dismissed the application, finding that the evidence in question was not protected by the sexual assault communications privilege, and the appellant was not entitled to cross-examine the complainant on her sexual experience. The court emphasised the importance of the privilege in encouraging victims to report sexual offences but noted that it was not an absolute privilege and had limitations. The court also highlighted the need to balance the rights of the accused with the need to protect the privacy of victims of sexual offences. The appeal was dismissed, and the orders of the District Court were upheld.

The court ordered that the application for leave be dismissed and the orders of the District Court be upheld. The court did not grant leave to adduce certain evidence or to object to the production of specific material on the basis of the sexual assault communications privilege. The court also did not grant leave to cross-examine the complainant on her sexual experience. The appellant's appeal was dismissed, and the convictions and sentences imposed by the District Court were upheld.

Orders

Orders of the court

[85] – [97]

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 RT (No 1) [2024] NSWDC 116
Hearing dates:	4, 5, 11 and 15 April 2024
Date of orders:	15 April 2024
Decision date:	15 April 2024
Jurisdiction:	Criminal
Before:	Sutherland SC DCJ
Decision:	[85] – [97]
Catchwords:	CRIMINAL PROCEDURE — Sexual assault communications privilege — Applications for leave CRIMINAL PROCEDURE — Subpoena — Objection to production of material — Sexual assault communications privilege — Applications for leave under section 299D of the Criminal Procedure Act 1986 (NSW) CRIMINAL PROCEDURE — Sexual offence proceedings — Admissibility of evidence related to sexual experience — Applications for leave to cross-examine under section 294CB(4) of the Criminal Procedure Act 1986 (NSW)
Legislation Cited:	Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW) ss 294CB, 298, 299B, 299D
Cases Cited:	Jackmain (a pseudonym) v R (2020) 102 NSWLR 847; [2020] NSWCCA 150 KS v Veitch (No 2) (2012) 84 NSWLR 172; [2012] NSWCCA 266 NAR v PPC1 [2013] NSWCCA 25; (2013) 224 A Crim R 535 Rohan v R [2018] NSWCCA 89 M v R (1993) 67 A Crim R 549 R v Bernthaler NSWCCA (60394/1993; Unreported 17 December 1993) R v Burton [2013] NSWCCA 335; (2013) 237 A Crim R 238 R v White (1989) 18 NSWLR 332 Valentine v R [2023] NSWCCA 43
Texts Cited:	Nil
Category:	Procedural rulings
Parties:	Rex (Crown) RT (Accused) Principal Protected Confider
Representation:	Counsel: E Winborne (Solicitor-Advocate) (Crown) G.D. Wendler (Accused) E Hulme & R Gilbert (Principal Protected Confider) Solicitors: Director of Public Prosecutions (NSW) (Crown) Kennedy Vinciullo (Accused) Legal Aid Commission of NSW (Principal Protected Confider)
File Number(s):	2023/00040675
Publication restriction:	Pursuant to section 578A of the Crimes Act 1900 (NSW), there is to be no publication of a name that identifies or is likely to lead to the identification of the complainant.