Re R v C - [2015] SASCFC 32

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Application)
R v C, RE
[2015] SASCFC 32
Reasons for Decision of The Honourable Justice Parker
27 March 2015
CRIMINAL LAW - PROCEDURE - DISCLOSURE OBLIGATIONS
PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - PRODUCTION AND INSPECTION - GROUNDS FOR RESISTING PRODUCTION - OTHER GROUNDS
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - FRESH EVIDENCE - OTHER MATTERS
Application to inspect and adduce as evidence certain documents produced to the Court upon subpoena in respect of an application for permission to appeal against conviction. The applicant was convicted by a District Court jury of persistent sexual exploitation of a child. In civil proceedings against the applicant, the victim disclosed documents indicating there may have been other perpetrators of sexual abuse during the same period which had not been reported to the police or prosecutors. The applicant subpoenaed the disclosed documents and further documents.
Whether the further documents disclose protected communications subject to public interest immunity under ss 67D and 67E of the Evidence Act 1929. Whether permission should be granted to adduce the documents as evidence under s 67F of the Evidence Act 1929. Whether permission should be granted to inspect the documents prior to the hearing of the application for permission to appeal.
Held (Parker J):
The further documents are protected by public interest immunity under s 67E. In the circumstances, the public interest in preventing a miscarriage of justice that might arise from suppression of the evidence outweighs the public interest in preserving the confidentiality of protected communications. Therefore, permission to adduce the documents as evidence is granted under s 67F. Permission to inspect the documents is not granted as that would be inconsistent with a purposive interpretation of the legislation.
Evidence Act 1929 s 67D, s 67E, s 67F; Children's Protection Act 1993 s 13, referred to.
C, RE v O, CL [2014] SASC 83; R v R, GJ (2009) 105 SASR 506; Adelaide Brighton Cement v South Australia (1990) 75 SASR 209; R v Basha (1989) 39 A Crim R 337; Northern Territory v GPAO (1999) 196 CLR 553, considered.

R v C, RE
[2015] SASCFC 32

PARKER J: The applicant has sought permission to appeal against his conviction by a District Court jury of persistent sexual exploitation of a child. In support of that application he has sought permission to inspect and adduce as evidence certain documents produced to the Court upon subpoena. This judgment deals with those issues.
The applicant contends that the relevant documents contain information casting reasonable doubt upon his conviction. A question has arisen as to whether the documents are protected communications under Division 9 of Part 7 of the Evidence Act 1929 and, if so, whether permission should be granted to inspect the documents and adduce them as evidence.
Division 9 provides:
67D—Interpretation
In this Division—
committal proceedings means proceedings for the preliminary examination of a charge…

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 Re R v C

Details

AGLC: Re R v C [2015] SASCFC 32
Case: [2015] SASCFC 32
Decision Date: 27 March 2015

CaseChat Overview and Summary

In *Re R v C*, the applicant sought permission to inspect documents produced by AWGPN, Dr Wilson, and Dr Nicholls, and permission to adduce evidence in support of an application to appeal a conviction. The central dispute concerned the interpretation and application of Division 9 of the relevant Act, which governs disclosure obligations in criminal proceedings.

The primary legal issue before Parker J was whether the prohibition on "discovery or any other form of pre-trial disclosure" under Division 9 extended to applications for permission to appeal and to appeals themselves. This required the court to consider the purposive interpretation of the legislation to ensure its coherent operation and the protection of privileged communications.

Parker J reasoned that a purposive interpretation of Division 9 was necessary to give best effect to its objects. The prohibition on discovery and disclosure should therefore be read to encompass applications for permission to appeal and appeals. This approach, the judge held, did not involve an impermissible rewriting of the Act but rather ensured that protected communications were not discoverable except where their contents were disclosed through evidence adduced with judicial permission.

Consequently, Parker J determined that the applicant was not granted permission to inspect the documents. However, permission was granted to adduce the evidence in support of the application to appeal the conviction under s 67F(1)(b). The court noted that if permission to appeal were granted, a further application could be made to admit the evidence as fresh evidence on appeal, but this would need to be done without the applicant having inspected the documents.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The words “discovery or any other form of pre-trial disclosure” ought to be interpreted in a purposively, rather than in a strictly literal, fashion so as to give best effect to the object of Division 9. Thus, the prohibition on discovery and disclosure should be read as extending to applications for permission to appeal and to appeals. I do not regard that purposive interpretation as involving an impermissible rewriting of the Act by the Court. Such a construction, to paraphrase the words used by Kourakis J R v R, GJ, would allow the provisions of Division 9 to operate coherently so that protected communications are not discoverable other than to the extent that their contents are disclosed through evidence that is adduced with the permission of the judge or appeal court. Conclusion I determine that the applicant is not granted permission under s 67F(1)(c) to inspect the documents produced by AWGPN, Dr Wilson and Dr Nicholls (to the extent that her records disclose Ms Sohner’s material). However, for the reasons already given at paragraphs 43 to 48 I grant permission to adduce the evidence under s 67F(1)(b) in support of the application to appeal the conviction. Should permission be granted to appeal, a further application may be made to admit the evidence as fresh evidence on the appeal. Such an application will need to be made without the applicant having inspected the documents

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.