Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Bonanno; ex parte Protected Confider [2020] NSWCCA 156 Hearing dates: 6 July 2020 Date of orders: 6 July 2020 Decision date: 10 July 2020 Before: Bathurst CJ at [1]; Hoeben CJ at CL at [2]; Adamson J at [3] Decision: (1) Subpoena issued by her Honour Judge Syme on 1 June 2020 ordering production of documents pertaining to counselling with the complainant be set aside. (2) Grant leave to the protected confider to appeal under s 5F of the Criminal Appeal Act 1912 (NSW). (3) Allow the appeal. Catchwords: CRIME — Appeals — Interlocutory appeal — Sexual assault communications privilege — Where court below purported to grant leave for accused to issue subpoena for documents containing protected confidences — Where Crown and accused accepted order should not have been made as relevant provisions not complied with — Subpoena set aside Legislation Cited: Courts and Crimes Legislation Further Amendment Act 2010 (NSW) Criminal Appeal Act 1912 (NSW), s 5F Criminal Procedure Act 1986 (NSW), ss 295, 296, 298A, 299, 299A, 299C, 299D Texts Cited: New South Wales Legislative Council, Parliamentary Debates (Hansard), 24 November 2010 Category: Principal judgment Parties: Protected Confider (Applicant) Regina Salvatore Bonanno (Accused) Representation: Counsel: S Healy (Applicant) F Veltro (Crown) J O'Sullivan (Accused) Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Crown) Phillip A Wilkins & Associates (Accused) File Number(s): 2019/81901 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 1 June 2020 Before: Syme DCJ File Number(s): 2019/81901 Judgment 1. BATHURST CJ: I agree with the orders proposed by Adamson J and with her Honour's reasons. 2. HOEBEN CJ at CL: I agree with Adamson J and the orders which she proposes. 3. ADAMSON J: On 1 June 2020, Syme DCJ purported to grant leave to the accused, Salvatore Bonanno, to issue a subpoena to a psychologist for the production of documents concerning counselling which the psychologist gave to the complainant (the protected confider). Her Honour also granted leave to the protected confider to access the documents once they had been produced to the Court. The accused stands charged with several counts of sexual offences against the protected confider. He is to be tried on indictment in the District Court. 4. By application filed on 4 June 2020, the protected confider sought leave, pursuant to s 5F of the Criminal Appeal Act 1912 (NSW) to appeal against her Honour's orders made on 1 June 2020. In substance, the grounds of appeal were that her Honour had not complied with ss 299C or 299D of the Criminal Procedure Act 1986 (NSW) (the Act). Both the Crown and the accused accepted that the orders should not have been made and that leave to appeal ought be granted, the appeal allowed and the subpoena ought be set aside. 5. On 6 July 2020, this Court ordered: (1) Subpoena issued by her Honour Judge Syme on 1 June 2020 ordering production of documents pertaining to counselling with the complainant be set aside. 1. My reasons for agreeing that the order ought be made, together with the consequential orders set out below, are as follows. 2. Division 2 of Part 5 of Chapter 6 of the Act makes provision for sexual assault communications privilege. A "protected confidence" is defined as meaning a counselling communication that is made by, relevantly, a victim of a sexual assault offence: s 296. Section 295 defines a protected confider as including, relevantly, the alleged victim of a sexual assault offence by whom a protected confidence was made. A victim of sexual assault cannot be compelled to identify a counsellor to whom a protected confidence has been made: s 298A. 3. A protected confider has standing in criminal proceedings if a document is sought to be produced or evidence is to be adduced that may disclose a protected confidence: s 299A. 4. The Court's responsibility is expressly provided for in s 299, which provides: "299 Court to inform of rights under Division If it appears to a court that a witness, party or protected confider may have grounds for making an application under this Division or objecting to the production of a document or the adducing of evidence, the court must satisfy itself (or if there is a jury, in the absence of the jury) that the person is aware of the relevant provisions of this Division and has been given a reasonable opportunity to seek legal advice." 1. Section 299C imposes a requirement that notice of application for leave be given before leave may be granted for a subpoena to be issued for documents which contain protected confidences. It relevantly provides: "299C Notice of application for leave (1) An applicant for leave under this Division must, as soon as is reasonably practicable, give notice in writing of the application to each other party and each relevant protected confider (or the protected confider's nominee) that— (a) specifies the document that is sought to be produced or the evidence that is sought to be adduced, and (b) in the case of a notice to a protected confider who is not a party to the proceedings—advises the protected confider that the protected confider may appear in the proceedings concerned, and (c) in the case of an application for leave to compel (whether by subpoena or any other procedure) a person to produce a document—specifies the day on which the document is to be produced, and … (2) A requirement to give notice to a protected confider who is not a party to proceedings is satisfied for the purposes of this section if the notice is given to— (a) the prosecutor in the criminal proceedings… (3) A prosecutor (or person or body) who is given a copy of a notice under subsection (2) must ensure that a copy of the notice is given to the protected confider within a reasonable time after its receipt. (4) A court cannot grant an application for leave under this Division until at least 14 days (or such shorter period as may be fixed by the court) after the relevant notices have been given under subsection (1) or (2). …" 1. Section 299D of the Act imposes a leave requirement before a subpoena is issued for a protected confidence. It relevantly provides: "299D Determining whether to grant leave (1) The court cannot grant an application for leave under this Division unless the court is satisfied that— (a) the document or evidence will, either by itself or having regard to other documents or evidence produced or adduced or to be produced or adduced by the party seeking to produce or adduce the document or evidence, have substantial probative value, and (b) other documents or evidence concerning the matters to which the protected confidence relates are not available, and (c) the public interest in preserving the confidentiality of protected confidences and protecting the principal protected confider from harm is substantially outweighed by the public interest in admitting into evidence information or the contents of a document of substantial probative value. (2) Without limiting the matters that the court may take into account for the purposes of determining the public interest in preserving the confidentiality of protected confidences and protecting the principal protected confider from harm, the court must take into account the following— (a) the need to encourage victims of sexual offences to seek counselling, (b) that the effectiveness of counselling is likely to be dependent on the maintenance of the confidentiality of the counselling relationship, (c) the public interest in ensuring that victims of sexual offences receive effective counselling, (d) that the disclosure of the protected confidence is likely to damage or undermine the relationship between the counsellor and the counselled person, (e) whether disclosure of the protected confidence is sought on the basis of a discriminatory belief or bias, (f) that the adducing of the evidence is likely to infringe a reasonable expectation of privacy. (3) For the purposes of determining an application for leave under this Division, the court may permit a confidential statement to be made to it by or on behalf of the principal protected confider by affidavit specifying the harm the confider is likely to suffer if the application for leave is granted. (4) A court must not disclose or make available to a party (other than the principal protected confider) any confidential statement made to the court under this section by or on behalf of the principal protected confider. (5) The court must state its reasons for granting or refusing to grant an application for leave under this Division. (6) If there is a jury, the court is to hear and determine any application for leave under this Division in the absence of the jury." 1. It was common ground that the documents sought by the subpoena the subject of leave included documents recording protected confidences by the protected confider. It was also common ground that her Honour did not apply ss 299C or 299D at all. In so far as one can discern her Honour's approach from the transcript, her Honour appeared to be under the mistaken apprehension that a subpoena could be issued without consideration of the matters provided for in the Act. This was erroneous. Her Honour was bound by the Act and failed to comply with it. For this reason, the subpoena was required to be set aside as it was unlawfully issued. 2. It is of utmost importance that courts acquaint themselves with relevant legislation and apply it. The range and number of pieces of legislation required to be applied in a criminal trial means that there is rarely a substitute for reviewing the actual terms of the legislation to see whether they apply in a particular case. Counsel plays a role in this process, too, and is obliged to point out to a judge the relevant legislation and how it ought be applied to the case in point. Non-compliance will result in an error of law and the potential invalidity of the juridical act, in this case the grant of leave to issue a subpoena and the subpoena itself. If left to go unchecked, errors of law can result in a mistrial of the accused and may cause substantial harm to others, including, in the present case, the protected confider. 3. Parliament has clearly expressed its intention in the provisions referred to above. In the Second Reading Speech (New South Wales Legislative Council, Parliamentary Debates (Hansard), 24 November 2010, at 28070-28072), the Hon. John Hatzistergos (then Attorney General) explained the policy reasons for the new provisions which were to be inserted into the Act by the Courts and Crimes Legislation Further Amendment Act 2010 (NSW): "Item [4] repeals sections 297 to 299D and replaces them with new provisions that are clearer, more prescriptive and offer better protection to sexual assault victims who have their counselling records subpoenaed by the defence. It is important to note that the common law is not ousted by the privilege in this area; that is to say, the requirement for a subpoena to have a legitimate forensic purpose still exists. In addition to this requirement, however, any party seeking to compel a person to produce a document recording a protected confidence must also comply with this section and obtain leave from the court. The sexual assault communications privilege is designed to limit the disclosure of protected confidences at the earliest point possible: for a complainant who has gone to a counsellor to discuss the sexual assault, it is little comfort to him or her if the documents are not to be adduced in evidence at the trial if they have already unnecessarily been disclosed to the defence by an order of the court. The privilege is not just designed to prevent the unnecessary adduction of evidence of protected confidences before a jury, but is designed to prevent the inappropriate subpoena of such confidences in the first place, and then the inappropriate granting of access to them. …New section 298 clarifies that a protected confidence can be produced or adduced in evidence in criminal proceedings only if the court gives leave. Under subsection (1) a new requirement is introduced to obtain leave from the court before seeking to compel a person to produce a document recording a protected confidence in, or in connection with, any criminal proceedings. Under subsection (2) leave of the court must also be obtained before a document recording a protected confidence can be produced in, or in connection with, any criminal proceedings. … New section 299 replaces the old section 303 and states that the court must satisfy itself that a witness, party or protected confider, which includes the victim or other person who made the protected confidence, who may have grounds for an application for leave, objection to the production of a document, or the adducing of evidence, is aware of the effect of the division, and has been given a reasonable opportunity to seek legal advice. The importance of this section is highlighted by its new location at the beginning of the division. That is, the question of whether the protected confider is aware of the protections offered by the division should not be an afterthought, given its importance in ensuring that the division offers effective protection. The new requirement for the victim to be given a reasonable opportunity to seek legal advice strengthens the earlier protection and, together with government-funded representation for victims in applications under this division, will ensure that the confidentiality of counselling records of sexual assault victims are better protected. New section 299A gives a protected confider who is not a party standing to appear in criminal proceedings or preliminary criminal proceedings, if a document is sought to be produced or evidence is sought to be adduced that may disclose a protected confidence made by, to or about the protected confider. …This section gives the protected confider automatic standing by right, and not by leave, and is an important new protection to assist sexual assault victims to successfully object to applications made under the division. … New section 299D prescribes six factors that the court must take into account when determining whether to grant leave under the division. These six factors provide clear guidance to the court of what it must consider when it embarks on its weighing exercise under subsection (1) (c). However, this list is not exhaustive, and the court is not limited when it determines the public interest in preserving the confidentiality of protected confidences and protecting the principal protected confider from harm. The court is required to take judicial notice of all these factors and there is no obligation on the protected confider to adduce evidence, although there is no prohibition on the protected confider from doing so if he or she wants. To that end, subsection (3) introduces a provision that allows the court to receive a confidential statement, by way of affidavit made by or on behalf of the principal protected confider, specifying the harm the confider is likely to suffer if the application for leave is granted. Under subsection (4), the court must not disclose or make available to a party, other than the principal protected confider, any confidential statement made to the court under this section by or on behalf of the principal protected confider. This addresses the difficulty that some protected confiders face in describing to the court the harm they might suffer if the protected confidence is disclosed, without describing the substance of the protected confidence. Subsection (5) provides that the court must state its reasons for granting or refusing to grant an application for leave under this division. Subsection (6) ensures that, if there is a jury, any application for leave is to be heard and determined in its absence." [Emphasis added.] 1. The Court's duty is to comply with the Act. Her Honour failed to do so in the present case. 2. For these reasons, I propose the following orders, in addition to order (1) setting aside the subpoena, which was made on 6 July 2020: (2) Grant leave to the protected confider to appeal under s 5F of the Criminal Appeal Act 1912 (NSW). (3) Allow the appeal. ********** Amendments 10 July 2020 - Appearance updated (coversheet) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 July 2020