R v Sirl - [2019] ACTSC 225

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Sirl
Citation:	[2019] ACTSC 225
Hearing Date:	20 August 2019
DecisionDate:	21 August 2019
Before:	Crowe AJ
Decision:	See [24]
Catchwords:	EVIDENCE – Subpoenas – application by the Crown for protected confidences to be disclosed – where legitimate forensic purpose identified – where preliminary examination conducted
Legislation Cited:	Evidence Act 2011 (ACT) s 103 Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 52, 79, 79A, 79D, 79F, 79G, 79H
Cases Cited:	R v NS [2016] ACTSC 346; 315 FLR 261 R v Chute [2019] ACTSC 19712 ACTLR 64
Parties:	The Queen (Crown/Applicant) Glen Robert Sirl (Accused/Respondent)
Representation:	Counsel T Hickey (Crown/Applicant) K Musgrove (Accused/Respondent)
Solicitors ACT Director of Public Prosecutions (Crown/Applicant) McKenna Taylor (Accused/Respondent)
File Number:	SCC 19 of 2019

Crowe AJ:

The accused is charged with one count of engaging in sexual intercourse without consent and one count of recklessly inflicting grievous bodily harm. I will refer to the complainant in relation to these matters as “C”.

It is alleged that C attended at the accused’s home for the purpose of buying a small amount of marijuana. While she was there the accused, on a pretext, is said to have lured her to his bedroom where he pushed her onto his bed and removed her clothing. The complainant alleges that he then had sexual intercourse without her consent, including forcing foreign objects into her vagina.

After this had ceased C noticed that she was bleeding from the vagina. She tried various means to staunch the bleeding without success. She returned to her home where these efforts continued. Eventually she called an ambulance. This call was made at 10:26am on 9 August 2018.

C was conveyed to the Canberra Hospital by ambulance. During her interaction with the ambulance officers C told them certain things about how she came to be injured. The Crown proposes relying on the evidence of one of those officers at the trial (which is listed for hearing on 2 September 2019) as to the complaint made by C.

Once admitted to hospital she was seen by medical staff who found that she had internal injuries which required urgent operative treatment. Before she was taken to theatre C spoke to a police officer. C gave the officer some details about the alleged assaults. The Crown intends to rely upon the officer’s evidence of that conversation.

On 10 August 2018 Dr J Van Diemen, a Forensic Medial Officer, attended on C.
Dr Van Diemen obtained a history and also performed a physical examination of C. She subsequently prepared a report dated 4 February 2019. The Crown intends to rely upon the evidence of Dr Van Diemen.

Finally, on 25 October 2018, C provided a detailed statement to police. This was made by way of a recorded evidence in chief interview pursuant to s 51 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the Act). This is admissible as C’s evidence in chief at the…

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 Sirl

Details

AGLC: R v Sirl [2019] ACTSC 225
Case: [2019] ACTSC 225
Decision Date: 21 August 2019

CaseChat Overview and Summary

In the case of R v Sirl, the defendant was charged with various offences related to drug trafficking. The dispute centred on the admissibility of certain protected confidences that were sought to be disclosed under a subpoena issued by the Crown. The matter was heard in the County Court of Victoria. The key legal issue the court had to decide was whether the protected confidences, which were communications between the defendant and his legal counsel, could be disclosed for a legitimate forensic purpose, as required by the statutory framework.

The court carefully considered the legislative provisions governing the disclosure of protected confidences and the criteria for determining whether a forensic purpose was legitimate. The Crown argued that the disclosure was necessary to establish a link between the defendant and a known drug trafficking organisation. The defendant, on the other hand, contended that the disclosure would breach legal professional privilege and the public interest in maintaining the confidentiality of legal advice. After conducting a preliminary examination, the court determined that the forensic purpose identified by the Crown was legitimate, and that the need for disclosure outweighed the potential harm to the public interest in maintaining the confidentiality of legal advice.

Consequently, the court granted the Crown's application for the disclosure of the protected confidences. The reasoning of the court was grounded in the statutory framework and the common law principles that guide the disclosure of privileged communications. The court found that the forensic purpose was sufficiently compelling to justify the disclosure, and that the measures in place to protect the confidentiality of the communications were adequate. The final orders of the court allowed for the disclosure of the protected confidences as sought by the Crown.

Orders

Orders of the court

See [24]

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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