R v Joshua Veitch [2012] NSWDC 174

District Court New South Wales

Medium Neutral Citation: R v Joshua Veitch [2012] NSWDC 174 Hearing dates: 07/05/2012 Decision date: 08 May 2012 Before: S Norrish QC DCJ Decision: See paragraph 52. Catchwords: SUBPOENA: Criminal Procedure, protected confidence Legislation Cited: Criminal Procedure Act 1986, ss 295-306 Evidence Act 1995, s 66, s 55 Cases Cited: Commissioner for Railways v Small (1938) 38 SR (NSW) 564 R v Saleam (1989) 16 NSWLR 14 Alister v The Queen (1984) 154 CLR 404. Category: Interlocutory applications Parties: Director of Public Prosecutions Joseph Veitch (Offender) Representation: Mr D Jordan (Crown) Mr C Taylor (Offender) Ms S Goodwin (KS) Director of Public Prosecutions CBD Criminal Defence Lawyers (Offender) File Number(s): 2011/00176700

Judgment

Introduction 1HIS HONOUR: The learned Director of Public Prosecutions for New South Wales proposes to have the accused, Joshua Veitch, arraigned on three charges set out in the indictment filed yesterday dated 7 May 2012. The three allegations are: firstly, that the accused on 18 May 2011 at Leichhardt in the State of New South Wales did assault KS thereby occasioning actual bodily harm to her. The second count in the indictment alleges that on 18 May 2011 at Leichhardt in the State of New South Wales he did have sexual intercourse with KS without her consent, knowing she not consenting thereto, in circumstances of aggravation; in that he, the said Joshua Veitch, did immediately before the offence intentionally or recklessly inflict actual bodily harm upon her. In the alternative to count 2 the Crown pleads that the accused on 18 May 2011 at Leichhardt in the State of New South Wales did have sexual intercourse with KS, without her consent, knowing she was not consenting thereto. 2Before the empanelment of the jury a number of issues were raised relating to the issue of a subpoena by the legal representatives of the accused which required determination of the Court before the trial could proceed. The "complainant" identified in the indictment and to whom I will refer to as the complainant throughout these reasons, is legally represented in relation to these matters. In relation to the conduct of the proceedings, although within the terms of ss 295 to 306 Criminal Procedure Act ("CPA") 1986 there are particular provisions in relation to "Notice" and the like, no issue is taken in relation to those matters. 3The issues that I was required to consider in a general summary were firstly, an application by the complainant to set aside the subpoena issued on behalf of the accused; secondly, an issue raised by learned counsel for the accused as to whether the material contained within the subpoenaed material was covered by the sexual assault communications privilege as (a) "protected confidence"; thirdly, I had to determine, assuming that I rejected the previous applications, whether I should grant leave under the division for access to be granted to some or all of the documents that have been produced under subpoena in accordance with the requirements of Chapter 6 Pt 5 Div 2 CPA and particularly s 299D. 4The subpoena to produce was issued, as I would understand it, on 30 March 2012, returnable on 19 April 2012 to the Proper Officer, Health Information and Records Service for the Western Sydney Mental Health District, (Deleted Hospital). The documents produced to the Court in MFI 1 and the subject of the various applications are produced by the New South Wales Western Sydney Local Health District. On my examination of them they purport to be in their totality records of the Cumberland Hospital and officers of that hospital, administrative, medical and nursing. The subpoena sought: [Deleted in accordance with non publication order]