R v Hickman [2014] NSWDC 277

District Court New South Wales

Medium Neutral Citation: R v Hickman [2014] NSWDC 277 Decision date: 21 July 2014 Jurisdiction: Criminal Before: Cogswell SC DCJ Decision: Order issuing subpoenas to determine application for leave for the production of documents or their admission into evidence. Catchwords: Criminal law - sexual assault - evidence - subpoenas - "counselling communication" - protected confidences – purpose of the legislation - leave. Legislation Cited: .Criminal Procedure Act 1986 (NSW) ss 296, 298, 299B, 299D Cases Cited: KS v Veitch (No 2) [2012] NSWCCA 266; 84 NSWLR 172; 229 A Crim R 46. Category: Procedural and other rulings Parties: Regina (Crown) Brian Hickman (accused) Representation: Counsel: M Pincott (Crown) C Mendes (complainant) B Hughes (accused) Solicitors: File Number(s): DC 2013/00338229

Judgment 1. A woman claims she was sexually assaulted by a man on 3 June 2012. The Director of Public Prosecutions has laid an indictment against the man, charging him with having sexual intercourse with the woman without her consent knowing that she was not consenting. The charge in that indictment will be tried before me sitting in Albury during the week commencing 13 October 2014. 2. In the meantime the man charged wants to subpoena three persons and one institution to produce documents to the Court. The forms of the subpoenas are attached to an affidavit by the man's solicitor, Mark Cronin, which Mr Cronin swore on 11 June 2014. 3. It is apparent, from reading the identities of the recipients of those subpoenas and the kinds of documents which are sought by the subpoenas, that the documents are likely to be counselling communications. (That expression "counselling communication" is defined in s 296(4) of the Criminal Procedure Act 1986 (NSW)). It is also likely that at least some of those communications may be protected confidences as defined in the same section. 4. Mr B Hughes SC appears for the accused man. He argues that I should make an order issuing the subpoenas under s 299B(4) of the Criminal Procedure Act. Ms C Mendes, who appears for the woman who is making the allegation, argues that before I can issue those subpoenas in accordance with the order that Mr Hughes seeks, Mr Hughes needs my leave in accordance with s 298(1) of the Criminal Procedure Act. That provision relevantly says that except with my leave "a person cannot seek to compel...any other person to produce a document recording a protected confidence in...any criminal proceedings." 5. Ms Mendes goes on to argue that Mr Hughes then has to meet the requirements of s 299D of the same Act. That provision requires a number of conditions to be met (to express it in broad terms) before I can grant leave to issue the subpoenas. Realistically it would seem that Mr Hughes SC would be in no position to satisfy me of those conditions without me seeing the documents themselves. Ms Mendes argues that such an outcome is consistent with the purpose of the legislation. The purpose of the legislation, she argues, is meant to be very restrictive and to protect such counselling communications which become protected confidences in accordance with the criteria set out in s 299D of the Act. 6. Mr Hughes SC argues that s 299B resolves that preliminary difficulty for him. He points out how it provides that if a "question arises under this Division relating to a document or evidence, a court may consider the document". He points out that the section also provides that a "court may make any orders it thinks fit to facilitate its consideration of a document...under this section." Mr Hughes SC argues that such powers are given to me obviously to enable me to consider as a preliminary matter the contents of the documents so that I can more easily determine the application for leave which he is likely to make under s 298(2) of the Act for the documents to be produced and made available to the parties. 7. Baston JA had occasion to consider this dilemma in KS v Veitch (No 2) [2012] NSWCCA 266; 84 NSWLR 172; 229 A Crim R 46. Harrison and Beech-Jones JJ agreed with his Honour. His Honour pointed out at [27] that the "procedural steps set out in s 299B become necessary in circumstances where the court is required to consider the criteria identified in s 299D, even for the purpose of considering a grant of leave to issue a subpoena." His Honour compared the provision with an earlier version of s 298 which did not display the current tension which seems to exist between s 298(1) and s 299B. His Honour concluded at [28] that s 299B reflects the procedural purpose that "the court have access to the document before deciding whether it should be made available to a party and that it should have the relevant powers to 'facilitate its consideration of' the document". His Honour pointed out that the "potential inconsistency between that provision and s 298(1) (in its current form) was addressed by the inclusion of s 299B(5)". That provides in express terms that s 299B "has effect despite sections 297 and 298." 8. It seems to me that Mr Hughes SC's argument is correct and that I am empowered to make an order issuing the subpoenas which his client seeks to issue in order to determine the matters which I need to determine relevant to any application for leave for the production of documents or their admission into evidence.