Spigelman CJ at 1; Beazley JA at 124; Abadee J at 217; James J at 232; Barr J at 217
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S) :
97/31/0134
LOWER COURT JUDICIAL OFFICER:
Judge Freeman
COUNSEL:
GJL Scragg (Appellant) PA Johnson SC/GJ Bartley (New England Area Health Service) PG Berman (Crown) HendyQC/Dr CB Birch (Attorney General)
SOLICITORS:
Locke O'Reilly McHugh (Appellant) SE O'Connor (Crown)
CATCHWORDS:
Criminal law and procedure - Evidence Act Pt3.10 Div1B - sexual assault communications privilege - whether applies to production of documents on subpoena, directly or derivatively - interpretation of Statutes - analogical or derivative application of Statutes - Public Interest Immunity.
DECISION:
Appeal allowed
IN THE COURT OF
CRIMINAL APPEAL
60522/98
SPIGELMAN CJ BEAZLEY JA ABADEE J JAMES J
BARR J
Wednesday 7 July 1999
REGINA v Brian James YOUNG
A District Court judge declined to grant the appellant, a defendant charged with sexual assault and indecent assault, access to patient’s notes, records and files which had been produced in response to subpoenas issued on behalf of the appellant and directed to the Tamworth Base Hospital, a sexual assault service attached to that hospital and to a psychiatrist.
The complainant to the assaults had disclosed that she was suffering from depression, that she had previously been admitted to the psychiatric ward of the Tamworth Base Hospital, that she had previously been sexually abused and that she had withdrawn an allegation of sexual assault which she had made against a person other than the appellant. The subpoenaed material came into existence in the course of the complainant’s treatment.
In the District Court, objection was taken to the production of the documents on the ground of sexual assault communications privilege pursuant to Div1B of Pt3.10 of the Evidence Act 1995 (NSW). It was conceded before Judge Freeman (and accepted in this Court) that the appellant’s subpoenas served a legitimate forensic purpose. Judge Freeman held that Div1B applied derivatively to the production of the documents. His Honour also held that confidential sexual assault communications attract public interest immunity (s130 of the Evidence Act).
[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 Young
Sign in free to access the full text
Details
AGLC
R v Young [1999] NSWCCA 166
Case
[1999] NSWCCA 166
Decision Date
CaseChat Overview and Summary
In the case of R v Young, the defendant was charged with a number of sexual offences against a young child. The Crown sought to compel the defendant to produce certain documents for inspection by the defence. The defendant objected, claiming the documents were protected by a sexual assault communications privilege. The matter was heard by the Supreme Court of New South Wales, which had to determine whether this privilege applied to the production of documents on subpoena, either directly or derivatively.
The legal issue before the court was whether the sexual assault communications privilege, found in Division 1B of Part 3.10 of the Evidence Act, applied to the production of documents on subpoena. The court had to interpret the statute and decide if it could be applied analogically or derivatively. Additionally, the court had to consider whether the public interest immunity certificate could override the privilege.
The court found that the sexual assault communications privilege did not apply to the production of documents on subpoena. The court reasoned that the privilege was intended to protect the privacy and sensitivity of communications between a person and a professional, such as a counsellor or medical practitioner, in the context of sexual assault. The privilege was not designed to protect documents that were created or held by the accused themselves, or by third parties not involved in the provision of professional advice. The court also noted that the privilege did not extend to derivative communications, such as documents that were created based on the original communication. The court concluded that the public interest immunity certificate could not override the privilege, as the privilege was intended to protect the public interest in ensuring that victims of sexual assault could communicate freely with professionals without fear of disclosure. The court ordered that the documents be produced for inspection by the defence.