R v Bruce RUSSELL [2013] NSWDC 129

R v Bruce RUSSELL [2013] NSWDC 129

Not all hospital records regarding the complainant are protected by sexual assault communication privilege. Only those made in the context of counselling by a qualified counsellor as defined by the Act are privileged. Documents concerning the complainant’s illicit drug use and auditory hallucinations have substantial probative value for credit and reliability, warranting partial access despite privilege, but the remainder do not meet the statutory threshold for probative value or do not attract the privilege.

Parties
Crown: Director of Public Prosecutions; Accused: Bruce Russell; Protected Confider: HS
Jurisdiction
Australia
Judgment Date
19 April 2013
Procedural Posture
Criminal / Interlocutory Application Regarding Claims of Privilege Under Subpoena
Outcome
Claims of privilege upheld in part. Leave granted for production of privileged documents relating to illicit drug use and auditory hallucinations; access to remainder as per marking.
Legal Topics
Sexual Assault Communication Privilege, Subpoena, Protected Confidence, Counselling Communication
Criminal Law Evidence Sexual Assault Communication Privilege Subpoena Protected Confidence Counselling Communication

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Parties

Director of Public Prosecutions

Crown

Bruce Russell

Accused

HS

Protected Confider

Procedural Posture

Criminal / Interlocutory Application Regarding Claims of Privilege Under Subpoena

Legal Issues

  1. 1 Whether the documents produced by hospitals relating to the complainant are protected by sexual assault communication privilege under the Criminal Procedure Act 1986
  2. 2 Interpretation of 'protected confidence', 'counsellor' and the scope of counselling communications under the Act
  3. 3 Availability of access to privileged documents under s 299D of the Criminal Procedure Act 1986

Ratio Decidendi

Not all hospital records regarding the complainant are protected by sexual assault communication privilege. Only those made in the context of counselling by a qualified counsellor as defined by the Act are privileged. Documents concerning the complainant’s illicit drug use and auditory hallucinations have substantial probative value for credit and reliability, warranting partial access despite privilege, but the remainder do not meet the statutory threshold for probative value or do not attract the privilege.

Court Disposition

Claims of privilege upheld in part. Leave granted for production of privileged documents relating to illicit drug use and auditory hallucinations; access to remainder as per marking.

Orders

  • Claims of privilege are upheld over documents marked with blue tags produced by St Vincent's Hospital and the Royal Prince Alfred Hospital.
  • Leave is granted to produce to the parties the privileged documents marked with red tags relating to the complainant's illicit drug use and auditory hallucinations, but only to the extent that they relate to those issues.