Rohan v R - [2018] NSWCCA 89

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 2
Cases 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 457
Texts Cited: New South Wales Legislative Council, Parliamentary Debates (Hansard), 24 November 2010
Category: Principal judgment
Parties: Rohan (a pseudonym)
Regina
Protected confider
Representation:
Counsel:
Mr G Scragg (Applicant)
Mr F Veltro (Crown/First Respondent)
Mr M Johnston SC (Complainant)
Solicitors:
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.
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.
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…

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 Rohan v R

Details

AGLC: Rohan v The Queen [2018] NSWCCA 89
Case: [2018] NSWCCA 89
Decision Date: 30 April 2018

CaseChat Overview and Summary

The appellant in this case sought leave to appeal an interlocutory decision made by the trial judge, who had refused to grant leave to issue subpoenas for documents related to the counselling of the complainant in a sexual assault case. The appeal was heard in the High Court of Australia. The appellant argued that the trial judge should have exercised the power under section 299B(4) of the Criminal Procedure Act to inspect documents obtained pursuant to section 299B(1). The appellant contended that the material sought would have substantial probative value, as required by section 299D(1)(a).

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