X v Commissioner of Police [2012] NSWSC 930

Supreme Court New South Wales

Medium Neutral Citation: X v Commissioner of Police [2012] NSWSC 930 Hearing dates: 10 August 2012 Decision date: 13 August 2012 Before: Johnson J Decision: The Plaintiff's application for an interim stay of the criminal proceedings against him listed before the [xxx] Children's Court on [xxx] 2012 is declined. The Plaintiff's application for urgent permanent restraint with respect to the issuing of search warrants is declined; The Plaintiff's Notice to Produce directed to the Defendant dated 1 August 2012 is set aside. Catchwords: CRIMINAL LAW - criminal proceedings commenced in Children's Court - committal proceedings for sexual assault offences - application in Supreme Court to stay prosecution as abuse of process - claim for interim stay of criminal proceedings - applicable principles - complaint to police concerning offences in 2009 - police determine not to investigate further - plaintiff so informed - plaintiff then undertakes counselling with psychotherapist - police obtain under search warrant in 2012 psychotherapist's records of treatment of plaintiff arising from alleged offences - police charge plaintiff - relevance of professional confidential relationship privilege under ss.126A-126B Evidence Act 1995 - criminal proceedings to be taken over by Director of Public Prosecutions - remedies available to plaintiff in criminal courts - interim stay declined - application for permanent restraining order preventing police from obtaining search warrants to obtain information from other treating health professionals - application declined Legislation Cited: Crimes Act 1900 Court Suppression and Non-Publication Orders Act 2010 Civil Procedure Act 2005 Children (Criminal Proceedings) Act 1987 Law Enforcement (Powers and Responsibilities) Act 2002 Supreme Court Act 1970 Evidence Act 1995 Cases Cited: Cooke v Purcell (1988) 14 NSWLR 51 Jago v District Court (NSW) [1989] HCA 46; 168 CLR 23 Williams v Spautz [1992] HCA 34; 174 CLR 509 The Queen v Carroll [2002] HCA 55; 213 CLR 635 R v Petroulias (No. 1) [2006] NSWSC 788; 177 A Crim R 153 Island Maritime Ltd v Filipowski [2006] HCA 30; 226 CLR 328 Federal Commissioner of Taxation v Citibank Ltd (1989) 85 ALR 588 R v Young [1999] NSWCCA 166; 46 NSWLR 681 Wilson v State of New South Wales [2003] NSWSC 805 Director-General Department of Community Services v D [2006] NSWSC 827; 66 NSWLR 582 Nolan v Curby (Court of Appeal, unreported, 20 December 1995, BC9506818) JD v Director of Public Prosecutions (Black AJ, unreported, 27 March 1998, BC9807909) Grassby v The Queen [1989] HCA 45; 168 CLR 1 Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129 Reid v Howard [1995] HCA 40; 184 CLR 1 Question of Law Reserved (No. 1) of 1998 (1998) 70 SASR 281 Texts Cited: --- Category: Interlocutory applications Parties: X (Plaintiff) Commissioner of Police (Defendant) Representation: Counsel: Mr WG Roser SC; Mr SA Goodman (Plaintiff) Mr D Kell (Defendant) Solicitors: Holding Redlich (Plaintiff) Crown Solicitors Office (Defendant) File Number(s): 2012/238908 Publication restriction: Parts of this judgment which serve to identify the Plaintiff or victim, directly or indirectly, have been deleted, including names of a psychotherapist and police officers who were mentioned in the limited evidence adduced at the urgent interlocutory hearing