R v RT (No 1) [2024] NSWDC 116

Procedural Posture

Criminal Proceedings Involving Sexual Assault Allegations; Procedural Applications Before Trial / Pre Trial Applications for Leave to Issue a Subpoena and for Leave to Adduce or Cross Examine on Evidence Relating to Sexual Experience

Legal Issues

1. 1 ["Whether leave should be granted to issue a subpoena to a psychologist for counselling notes and records concerning the complainant's allegations against the accused and another brother." 'Whether counselling notes and records should be produced to the parties or admitted despite the sexual assault communications privilege.' 'Whether evidence and cross-examination about alleged sexual activity between the complainant and another brother fell within the exceptions in s 294CB(4) of the Criminal Procedure Act 1986 (NSW).' 'Whether the probative value of evidence concerning the other brother outweighed any distress, humiliation or embarrassment to the complainant.' 'Whether the evidence about the other brother was at or about the time of the alleged prescribed sexual offences and formed part of a connected set of circumstances, including because of possible misattribution.']

Ratio Decidendi

The counselling notes were protected confidences and, after inspection, did not have substantial probative value. Although other documents or evidence concerning the matters were not available, the public interest in preserving confidentiality and protecting the Principal Protected Confider from harm, including as addressed in a confidential affidavit, was not substantially outweighed. Leave to issue the subpoena, and leave for production to the parties, was therefore refused. Separately, in light of the complainant's fresh statement and other statements indicating uncertainty about which brother committed particular acts, and the overlap in timing and circumstances between alleged...

Court Disposition

The accused's application for leave to issue a subpoena to the psychologist was refused; leave for production of the documents to the parties would also be refused. The accused was permitted to cross-examine and introduce evidence about alleged sexual interaction between the complainant and the other brother within...

Orders

• ['On 5 April 2024, the psychologist was ordered to produce to the Court notes and records relating to claims of historical sexual molestation by both brothers and notes and records about role-playing conducted with the psychologist.' 'The application for leave to issue a subpoena was formally refused.' 'Leave for...