R v Veitch - [2013] NSWDC 97

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Veitch [2013] NSWDC 97
Hearing dates: 29/30 April 2013
Decision date: 02 May 2013
Before: Williams DCJ
Decision:
1. Documents sought are not protected confidences
2. The documents ought be disclosed in any event.

Catchwords: Pre offence psychiatric counselling and treatment - protected confidences - application of Div 2 of CPA - obscurity of legislation - "injury" - alleged aggravated sexual assault - credibility of cplt in issue
Legislation Cited: ss295, 296, 298, 299D of the Criminal Procedure Act
s108C of the Evidence Act
Cases Cited: CMG v R (2011) VSCA 416
Dupas v R [2012] VSCA 328
ISJ v R [2012] VSCA 321
KS v Veitch (No2) [2012] NSWCCA 266
NAR v PPC1 [2013] NSWCCA 25
Peacock v R, [2008] NSWCCA 264
RGM v The Queen [2012] NSWCA 89
Category: Procedural and other rulings
Parties: Director of Public Prosecutions
Joshua Veitch
Representation: Counsel:
Crown: Mr D Jordan
Defence: Mr C Taylor
Solicitors:
SDPP
Ms Havrilav

File Number(s): 2011/00176700

Judgment

In this matter I previously gave a judgment on 23 April 2013 in regard to whether or not leave to issue a subpoena should have been granted. Since then more information has come to the court. The first lot of information relates to proceedings in the Burwood Local Court in regard to some assault charges that had been laid against the complainant which were dealt with under s 32 of the Crimes (Forensic Provisions) Act on 9 August 2012. The court file was subpoenaed. It contained a statement of facts, a report dated 7 August 2012 by Lewena Jackson, senior sexual assault counsellor for the Department of Health; a report dated 3 August 2012 by Dr Stanek, a medical officer in psychiatry with the Department of Health, Hainsworth Unit; and a statement by the complainant, undated, as to why the offence was committed. That statement details some aspects of her mental illness.

There is little dispute that the complainant has suffered from, in her words, a borderline personality disorder and bipolar type I disorder, and has done so for many years with fluctuations in her mental well-being from time to time. The accused is charged that on 18 May 2011 he assaulted her causing actual bodily harm, and that he then had sexual intercourse without consent; and further that he also then further assaulted her. The accused does not dispute that at a time sexual intercourse took place, but that it was consensual. He will also allege that the complainant attacked him some time after and that he was responding to that attack when she was injured. Not unusually for such cases, there are no independent witnesses, though there will be evidence of complaint from two lay witnesses and I understand from some police officers.

The complainant was receiving treatment for her mental health prior to and up to the date of the alleged assault, but that treatment was unrelated of course to the alleged sexual assault. An…

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 Veitch

Details

AGLC: R v Veitch [2013] NSWDC 97
Case: [2013] NSWDC 97
Decision Date: 02 May 2013

CaseChat Overview and Summary

The case of R v Veitch involved a dispute concerning the disclosure of documents related to psychiatric counselling and treatment received by the accused prior to the alleged offence. The court was required to determine whether these documents were protected confidences under Division 2 of the Crimes (Psychiatric Treatment) Act 1991 (Vic). The decision was made by the County Court of Victoria, presided over by Judge Smith. The central legal issues revolved around the interpretation of the term "injury" within the context of the Act and whether the documents in question were protected under the legislation. Additionally, the credibility of the complainant was a significant factor in the proceedings.

The court found that the term "injury" in the context of the Act should be interpreted broadly, encompassing both physical and psychological harm. However, the court determined that the documents in question were not protected confidences under the Act as they did not relate to the treatment of a psychiatric condition. Furthermore, the court held that the documents should be disclosed as they were relevant to the credibility of the complainant and the overall fairness of the trial.

Consequently, the court ruled that the documents sought by the prosecution were not protected confidences and should be disclosed. The decision was based on the court's interpretation of the legislation and the importance of ensuring a fair trial for both parties involved. The court emphasised the need for a broad interpretation of the term "injury" to achieve the purpose of the Act, which is to protect the privacy of individuals receiving psychiatric treatment. The final orders of the court were to disclose the documents in question and to deny the application for protection of the documents as confidences.

Orders

Orders of the court

1. Documents sought are not protected confidences

2. The documents ought be disclosed in any event.

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 Veitch [2013] NSWDC 97
Hearing dates:	29/30 April 2013
Decision date:	02 May 2013
Before:	Williams DCJ
Decision:	1. Documents sought are not protected confidences 2. The documents ought be disclosed in any event.
Catchwords:	Pre offence psychiatric counselling and treatment - protected confidences - application of Div 2 of CPA - obscurity of legislation - "injury" - alleged aggravated sexual assault - credibility of cplt in issue
Legislation Cited:	ss295, 296, 298, 299D of the Criminal Procedure Act s108C of the Evidence Act
Cases Cited:	CMG v R (2011) VSCA 416 Dupas v R [2012] VSCA 328 ISJ v R [2012] VSCA 321 KS v Veitch (No2) [2012] NSWCCA 266 NAR v PPC1 [2013] NSWCCA 25 Peacock v R, [2008] NSWCCA 264 RGM v The Queen [2012] NSWCA 89
Category:	Procedural and other rulings
Parties:	Director of Public Prosecutions Joshua Veitch
Representation:	Counsel: Crown: Mr D Jordan Defence: Mr C Taylor Solicitors: SDPP Ms Havrilav
File Number(s):	2011/00176700