Supreme Court New South Wales Medium Neutral Citation: R v Spiteri-Ahern; R v Barber; R v Zraika (No 3) [2017] NSWSC 1277 Hearing dates: 31 August 2017 Date of orders: 31 August 2017 Decision date: 31 August 2017 Jurisdiction: Common Law Before: Rothman J Decision: (1) Issue of the subpoena allowed; (2) Documents produced as a result of the subject subpoena to be returned to the Court and, pursuant to the terms of s 299B of the Criminal Procedure Act 1986, after which the Court will determine whether the documents fall within the category of a protected confidence, and if so, appropriate notice will be given to the witness and the other parties. Catchwords: SUBPOENA – suggestion that documents sought caught by privilege created for communication in confidence of victim of sexual assault – Court not aware of circumstance of person's history, nor nature of documents – subpoena issued for purpose of determining preliminary issue of whether privilege under s 295 of the Criminal Procedure Act 1986 applied. Legislation Cited: Criminal Procedure Act 1986, Part 5, Division 2, ss 295, 296, 299B, 299C Category: Procedural rulings Parties: 2014/00180060: Regina (Crown) Louise Catherine SPITERI-AHERN (Accused) 2014/00180279: Regina (Crown) April BARBER (Accused) 2014/00235123: Regina (Crown) Amin ZRAIKA (Accused) Representation: Counsel: 2014/00180060: D Patch (Crown) J Trevallion (Accused) 2014/00180279: D Patch (Crown) A Francis (Accused) 2014/00235123: D Patch (Crown) Dr R Webb (Accused) Solicitors: 2014/00180060: Office of the Director Public Prosecutions (Crown) Archbold Legal Solutions (Accused) 2014/00180279: Office of the Director Public Prosecutions (Crown) Bannisters Lawyers (Accused) 2014/00235123: Office of the Director Public Prosecutions (Crown) Macquarie Lawyers Burwood (Accused) File Number(s): 2014/00180060; 2014/00180279; 2014/00235123 EX TEMPORE Judgment 1. HIS HONOUR: The legal representatives of Ms Spiteri-Ahern have issued subpoenae relating to certain reports and records of medical experts. The Crown appropriately raises the application of certain privileges arising from the suggested history of the witness. 2. The provisions in the Criminal Procedure Act 1986 ("the Act"), Part 5, Division 2 ("the Division"), commencing with s 295, apply to a "protected confidence", a term defined in s 296 of the Act. It is thereafter utilised in the remaining sections of the Act and the term depends upon the Court forming a view, and/or, in the case of s 299C of the Act, a party seeking the production of a document forming a view, that the document is a protected confidence. The definition of the term includes a counselling communication made in confidence by a person who is counselling the person or made in confidence by the person to the counsellor. 3. At this point in time, I am wholly unaware, and I accept that Ms Spiteri-Ahern's legal representatives were wholly unaware, as to whether or not any of the reports that are sought to be subpoenaed are documents that, even arguably, are protected confidences. There is no evidence before the Court as to the witness' history. Nor does the Court have access to the documents. In those circumstances, the Court cannot form a view, even on a preliminary basis, that the witness may have grounds for making an application under the Division. 4. As a consequence, I will allow the issue of the subpoena; the subpoena will be returned to the Court and, thereafter, pursuant to the terms of s 299B of the Act, the Court will determine whether the documents arguably fall within the category of a protected confidence, and if so, appropriate notice will be given to the witness and the other relevant parties. ********** Amendments 13 April 2023 - Publication restriction lifted. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 April 2023