R v Guerrera, Nicolino [2014] NSWDC 347

R v Guerrera, Nicolino [2014] NSWDC 347

Access to certain portions of the counselling communication privileged documents is granted pursuant to s 299D of the Criminal Procedure Act 1986, as the court is satisfied that: (1) the relevant documents have substantial probative value to issues of the complainant's reliability, accuracy, and credibility; (2) no other evidence addresses these matters; and (3) the public interest in admitting the evidence substantially outweighs the public interest in preserving confidentiality. A broad claim for privilege over entire hospital files is not justified; only specifically qualifying documents attract the statutory protection.

Parties
Prosecution: The Crown; Accused: Nicolino Guerrera
Jurisdiction
Australia
Judgment Date
26 June 2014
Procedural Posture
Criminal / Pre Trial (ruling on Subpoenas/counselling Communication Privilege)
Outcome
Access granted to specific portions of documents; access refused to other parts as not having substantial probative value or falling outside the statutory privilege.
Legal Topics
Confidential Communications Privilege, Sexual Assault Communications Privilege, Access to Subpoenaed Documents, Definition of Counselling Communication, Probative Value, Public Interest Balancing
Criminal Law Evidence Confidential Communications Privilege Sexual Assault Communications Privilege Access to Subpoenaed Documents Definition of Counselling Communication Probative Value Public Interest Balancing

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Parties

The Crown

Prosecution

Nicolino Guerrera

Accused

Procedural Posture

Criminal / Pre Trial (ruling on Subpoenas/counselling Communication Privilege)

Legal Issues

  1. 1 Whether documents produced under subpoena are protected confidences under Part 5 Division 2 of the Criminal Procedure Act 1986
  2. 2 Whether leave should be granted to access counselling communications claimed as privileged
  3. 3 Balancing public interest in preserving confidentiality against the probative value of documents

Ratio Decidendi

Access to certain portions of the counselling communication privileged documents is granted pursuant to s 299D of the Criminal Procedure Act 1986, as the court is satisfied that: (1) the relevant documents have substantial probative value to issues of the complainant's reliability, accuracy, and credibility; (2) no other evidence addresses these matters; and (3) the public interest in admitting the evidence substantially outweighs the public interest in preserving confidentiality. A broad claim for privilege over entire hospital files is not justified; only specifically qualifying documents attract the statutory protection.

Court Disposition

Access granted to specific portions of documents; access refused to other parts as not having substantial probative value or falling outside the statutory privilege.

Orders

  • No access granted to any documents from Bowral Hospital in response to the subpoena.
  • Access refused to most of the Cumberland and South Pacific Private Hospital files except for: two documents from the Cumberland Hospital notes and one document from the South Pacific Private Hospital notes, leave for access to which is granted under s 299D Criminal Procedure Act 1986.