Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Rohan v R [2018] NSWCCA 89 Hearing dates: 30 April 2018 Decision date: 30 April 2018 Before: Hoeben CJ at CL at [1];
Walton J at [2];
R A Hulme J at [6]Decision: 1. Leave to appeal granted.
2. Appeal dismissed.Catchwords: APPEALS – section 5F appeal against interlocutory decision to refuse leave to issue subpoenas – sexual assault communication privilege – Criminal Procedure Act – where proposed subpoenas sought documents relating to complainant’s counselling – where trial judge found s 299B had no application – where appellant contended power under s 299B(4) should be exercised to inspect documents pursuant to s 299B(1) – whether the material sought would have substantial probative value pursuant to s 299D(1)(a) – leave to appeal granted – appeal dismissed Legislation Cited: Courts and Crimes Legislation Further Amendment Act 2010 (NSW) Sch 1.1
Criminal Appeal Act 1912 (NSW) s 5F(3)
Criminal Procedure Act 1986 (NSW) ss 294, 296, 297, 298, 299A, 299B, 299D
Evidence Act 1995 (NSW) s 97
Interpretation Act 1987 (NSW) s 35
Mental Health (Forensic Provisions) Act 1990 (NSW) Pt 2Cases Cited: ER v Khan [2015] NSWCCA 230
KS v Veitch (No 2) (2012) 84 NSWLR 172; [2012] NSWCCA 266
NAR v PPC1 [2013] NSWCCA 25; (2013) 224 A Crim R 535
PPC v Williams [2013] NSWCCA 286; (2013) 224 A Crim R 535
R v Lockyer (1996) 89 A Crim R 457Texts Cited: New South Wales Legislative Council, Parliamentary Debates (Hansard), 24 November 2010 Category: Principal judgment Parties: Rohan (a pseudonym)
Regina
Protected confiderRepresentation: Counsel:
Solicitors:
Mr G Scragg (Applicant)
Mr F Veltro (Crown/First Respondent)
Mr M Johnston SC (Complainant)
Jeffreys Lawyers
Solicitor for Public Prosecutions
Sydney Criminal & Traffic Lawyers
File Number(s): 2015/162751 Decision under appeal
- Court or tribunal:
- District Court
- Date of Decision:
- 19 April 2018
- Before:
- Syme DCJ
- File Number(s):
- 2015/162751
Judgment
-
HOEBEN CJ at CL: I agree with R A Hulme J.
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WALTON J: I have had the advantage of reading, in draft form, the judgment of R A Hulme J in this matter. I agree with the orders proposed by his Honour and generally his reasons for judgment. There is one matter about which I propose to make some brief remarks.
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In the absence of argument, but with doubt, his Honour applied KS v Veitch (No 2) (2012) 84 NSWLR 172; [2012] NSWCCA 266 (“Veitch No 2”) to sustain a proposition that s 299B operated with respect to an application for leave to issue a subpoena under s 298(1) of the Criminal Procedure Act 1986 (NSW) (his Honour expressed no difficulty with s 299B applying in the case of s 298(2) and (3) where, in contrast to the circumstances applying under s 298(1), documents and evidence were readily available to the Court).
-
The matter can await full argument but, having regard to the judgment in Veitch No 2 I do not share those reservations. As Basten…
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- AGLC
- Rohan v The Queen [2018] NSWCCA 89
- Case
- [2018] NSWCCA 89
- Decision Date
CaseChat Overview and Summary
The legal issue before the court was whether the trial judge was correct in finding that the sexual assault communication privilege, as provided for in section 299B of the Criminal Procedure Act, applied to the proposed subpoenas. The appellant argued that the power under section 299B(4) should be exercised to inspect documents that may have substantial probative value. The court considered whether the trial judge's decision to refuse leave to issue subpoenas was correct, and whether the material sought would have substantial probative value.
The court found that the trial judge was correct in finding that the sexual assault communication privilege applied to the proposed subpoenas. The court held that the privilege protected the complainant's privacy and was not outweighed by the appellant's need for the documents. The court further found that the material sought did not have substantial probative value, as it was unlikely to contribute significantly to the resolution of the case. The appeal was ultimately dismissed, and the decision of the trial judge was upheld.
No orders were made by the High Court of Australia as the appeal was dismissed. The decision of the trial judge remained in place, and the appellant was not granted leave to issue subpoenas for the documents related to the complainant's counselling.
Orders
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Background
Background to the litigation
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Evidence Before The Court
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Decision
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