R v Norman Lee [2000] NSWCCA 444

Reported Decision : 50 NSWLR 289

New South Wales Court of Criminal Appeal

CITATION : R v Norman Lee [2000] NSWCCA 444 FILE NUMBER(S) : CCA 60578/00 HEARING DATE(S) : 18 October 2000 JUDGMENT DATE : 18 October 2000

PARTIES : Regina v Norman Lee JUDGMENT OF : Mason P at 33; Heydon JA at 1; Wood CJ at CL at 34

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/21/3075 LOWER COURT JUDICIAL Woods ADCJ OFFICER :

I H McClintock (Applicant) COUNSEL : W G Dawe QC (Crown) M Bowe (Solicitor) (Complainant) MacMahon Associates (Applicant) SOLICITORS : S E O'Connor (Crown) Marsdens (Complainant) CATCHWORDS : CRIMINAL LAW AND PROCEDURE - appeal from decision of District Court - subpoena for production of documents - sexual assault communication privilege - 'protected confidence' - meaning of 'counsellor' as defined by s 148(4)(a) Criminal Procedure Act 1986 LEGISLATION CITED : Criminal Appeal Act 1912 Criminal Procedure Act 1986 CASES CITED: Jaffee v Redmond 518 US 1 (1996) DECISION : See paragraph 32

IN THE COURT OF CRIMINAL APPEAL

60578/00

MASON P HEYDON JA WOOD CJ at CL

Wednesday, 18 October 2000

REGINA v NORMAN LEE

JUDGMENT

1 HEYDON JA: This is an application pursuant to s 5F of the Criminal Appeal Act 1912 for leave to appeal against an order made by Woods ADCJ on 18 August 2000 having the effect of relieving the recipient of a subpoena issued by the defendant in criminal proceedings from complying with it. 2 The subpoena was addressed to "The Proper Officer/Secretary" of "Mission Australia". It ordered production of the following documents: "All records, notes, reports and documents including but not limited to counselling notes or reports with respect to (the complainant), date of birth: 20 July 1979." 3 The subpoena was issued in proceedings in which the accused was charged, on 12 November 1999, with five counts of indecent assault on a person under the age of sixteen years, namely, the complainant, by a person in authority. The offences charged are alleged to have taken place at various times in 1989-1990, when the complainant was a primary school pupil of the defendant's. The charges followed a statement to the police made by the complainant on 24 July 1999. 4 The procedural history is that the subpoena was returnable on 11 August 2000. On that day Mission Australia produced seventy-three pages of documents. The presiding judge, Sidis DCJ, was handed a letter by the Crown which the complainant had sent to the Crown. In that letter the complainant claimed that the documents in question contained "protected confidences" and said that she did not consent to their production. Sidis DCJ refused an application for access and decided that the complainant should be heard in respect of her claim. 5 On 14 August 2000 the complainant attended without legal representation before the primary judge but said she would have it on 16 August 2000. On 16 August the matter was argued. 6 The reasoning of the primary judge can be summarised as follows: (a) the material caught by the subpoena comprised seventy-three pages, being copy handwritten notes of telephone and face-to-face communications between the complainant and officers of Mission Australia; (b) the officers of Mission Australia were "counsellors" and were persons falling within paragraph (a) of the definition of "counselling communication" in that they were "counselling, giving therapy to or treating the [complainant] for [an] emotional or psychological condition" within the meaning of these words in s 148(4)(a) of the Criminal Procedure Act 1986; (c) therefore the documents were "counselling communications"; (d) therefore, since they were counselling communications made by or to an alleged victim of a sexual assault offence, they were "protected confidences": s 148(1); (e) therefore Mission Australia, being a person who objected to production of the documents recording protected confidences, could not be required by subpoena to produce the documents unless the exceptions set out in s 150(1) applied; (f) those exceptions did not apply, first, because the documents lacked "substantial probative value" (s 150(1)(b)(i)) and, secondly, because the public interest in preserving confidentiality was not substantially outweighed by the public interest in allowing inspection; (g) accordingly, Mission Australia was not obliged to produce the documents for inspection. 7 On 1 September 2000 the defendant brought this application for leave to appeal against the primary judge's order and argument took place today. In view of the fact that the defendant's trial is fixed to commence on 23 October 2000, these reasons for judgment are delivered ex tempore.