R v Kelsall (No 3) [2015] NSWSC 253

Supreme Court New South Wales

Medium Neutral Citation: R v Kelsall (No 3) [2015] NSWSC 253 Hearing dates: 2 March 2015 Decision date: 04 March 2015 Jurisdiction: Common Law Before: R A Hulme J Decision: Evidence of protected confidences admissible Catchwords: CRIMINAL LAW – evidence – s 126B Evidence Act - admissibility of statements made to two medical practitioners – where statements amount to protected confidences – where evidence is highly probative – limitations of doctor/patient confidentiality where statements concern harm to others - public interest concerns mitigated – evidence admissible Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW) Evidence Act 1995 (NSW) Cases Cited: R v Leung [2012] NSWSC 1451 Category: Procedural and other rulings Parties: Regina Daniel Jack Kelsall Representation: Counsel: Mr P McGrath SC (Crown) Mr C Watson (Accused)

Solicitors: Solicitor for Public Prosecutions Breton Legal Pty Limited File Number(s): 2013/302108

Judgment 1. HIS HONOUR: The accused, Daniel Jack Kelsall, has pleaded not guilty to the two counts on the indictment which allege that on 8 September 2013 at Neutral Bay he indecently assaulted and murdered Morgan Huxley. 2. The Crown case is that after the accused had finished work as a kitchen hand late at night he followed the deceased from the Oaks Hotel at Neutral Bay to the deceased's nearby home in Watson Street. It is alleged that he entered the deceased's apartment and there, in the deceased's bedroom, committed the two offences. The deceased's flat mate was alerted to sounds coming from his bedroom. She went to investigate and found the deceased on the floor covered in blood. The immediate investigation established that he had died from the effects of multiple stab wounds. 3. The issue with which this judgment is concerned is the admissibility of statements made by the accused to two people in the middle of 2012. It is common ground that the statements amount to "protected confidences": Ch 3 Pt 3.10 Div 1A of the Evidence Act 1995 (NSW). A court is empowered to exclude such evidence by s 126B, and must do so if satisfied of the matters in s 126B(3). For the purposes of the section, the court is required to take into account the matters listed in s 126B(4).