ER v Khan [2015] NSWCCA 230

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: ER v Khan [2015] NSWCCA 230 Hearing dates: 22 July 2015 Decision date: 26 August 2015 Before: Hoeben CJ at CL at [1] Hall J at [2] Button J at [120] Decision: Application for leave to appeal dismissed. Catchwords: CRIMINAL LAW – Sexual assault communications privilege – Application for leave to appeal against a determination that documents produced in answer to subpoenas are not protected confidences under Chapter 6, Part 5, Division 2 Criminal Procedure Act 1986 – Whether the trial judge erred in finding that documents contained in records of the Department of Family and Community Services were not protected confidences – Whether the trial judge failed to give reasons or examine the relevant material – Protected confidences under the Act are 'counselling communications' – Whether affidavit evidence and a Schedule of Documents was sufficient evidence to find 'counselling communications' – Sentencing judge in this case required to consider the contents of each document individually to determine whether it was a protected confidence – Assertions of privilege insufficient evidence to establish privilege – No error established in sentencing judge's characterisation of protected confidences or approach to considering the documents – Application for leave to appeal dismissed. Legislation Cited: Criminal Appeal Act 1912 Criminal Procedure Act 1986 Criminal Procedure Amendment (Sexual Assault Communications Privilege) Bill (2002) Uniform Civil Procedure Rules 2005 Cases Cited: Bailey v Department of Land and Water Conservation [2009] NSWCA 100; (2009) 74 NSWLR 333 Barnes v Federal Commissioner of Taxation [2007] FCAFC 88 Kennedy v Wallace (2004) 142 FCR 185; [2004] FCAFC 337 KS v Veitch (No 2) [2012] NSWCCA 266; (2012) 84 NSWLR 172 NAR v PPC1 [2013] NSWCCA 25 PPC v Williams [2013] NSWCCA 286 Texts Cited: Judicial Officers' Bulletin, April 2015, Vol 27, No 3, entitled "Use of the sexual assault communications privilege in sexual assault trials" Category: Principal judgment Parties: ER (Applicant) John Leslie Khan (Respondent) Representation: Counsel: P Little (Applicant) K Shead (Respondent)