NAR v PPC1 [2013] NSWCCA 25

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: NAR v PPC1 [2013] NSWCCA 25 Hearing dates: 13 February 2013 Decision date: 15 February 2013 Before: Hoeben JA at [1] Adams J at [2] Beech-Jones J at [7] Decision: Leave to appeal refused Catchwords: CRIMINAL LAW - interlocutory appeal -sexual assault communications privilege - issue of subpoena and production of documents subject to leave - inspecting subpoenaed documents for protected confidences - consent to production - whether compelled documents had substantial probative value - Criminal Procedure Act 1986, ss 295-306

CONSTITUTIONAL LAW - limits on legislative power of States - essential characteristics of State court receiving federal jurisdiction - sexual assault communications privilege - State law prohibits compelled production of counselling communications - issue of subpoena and production of documents subject to leave - repugnancy to judicial power or institutional integrity of State court - Criminal Procedure Act 1986, ss 295-306 Legislation Cited: - Crimes Act 1900 - s 61I, s 61L - Criminal Appeal Act 1912 - s 5F(3) - Criminal Code Act 1995 (Cth) - s 270.6 - Criminal Procedure Act 1986 - s 293, s 295, s 296, s 298, s 299B, s 299D, s 300, Ch 6 Pt 5 Div 2 - Evidence Act 1995 - Pt 3.7 Div 2, Pt 3.10 Div 1B - Judiciary Act 1903 (Cth) - s 79(1) Cases Cited: - Alister v R (1983) 154 CLR 404 - JAD v The Queen [2012] NSWCCA 73 - Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51 - KS v Veitch [2012] NSWCCA 186 - KS v Veitch (No 2) [2012] NSWCCA 266 - Queanbeyan City Council v Environment Protection Authority [2011] NSWCCA 108 - R v Einfeld [2008] NSWCCA 215; 71 NSWLR 31 - R v Van Phu Huo (New South Wales Court of Criminal Appeal, 18 July 1994, unrep) Category: Principal judgment Parties: "NAR" (Applicant) "PPC1" (First Respondent) Crown (Second Respondent) Attorney General of New South Wales (Intervenor) Representation: Counsel: Mr S. Sivaloganathan (Applicant) Mr P.M. Strickland SC, Mr G.F. Jauncey (First Respondent) Ms J.R. Dwyer (Second Respondent) Dr J.G. Renwick SC, Mr R. Rankin (Intervenor - Attorney General of New South Wales) Solicitors: Jeffreys Lawyers (Applicant) Heenan & Co (First Respondent) Solicitor for Public Prosecutions (Second Respondent) Crown Solicitor's Office of New South Wales (Intervenor - Attorney-General of New South Wales) File Number(s): 2011/008243 Publication restriction: Note that this version of the judgment has been modified from the version published to the parties to use a pseudonym for the applicant who is awaiting trial, and a variant on the pseudonym of the victim from that which was originally published. Decision under appeal Jurisdiction: 9101 Date of Decision: 2012-08-20 00:00:00 Before: Zahra DCJ File Number(s): 2011/008243