ER v Khan [2015] NSWCCA 230

ER v Khan [2015] NSWCCA 230

Leave to appeal was refused because no error was shown in the District Court's approach or conclusions. The applicant bore the onus of establishing sexual assault communications privilege but the affidavit evidence and schedule did not identify facts showing that the documents were counselling communications or derived from protected confidences. In those circumstances the District Court was required to examine each document individually, which it did, applying s 296 of the Criminal Procedure Act 1986 and withholding access where counselling communications or derivative protected material were identified. The reasons given were sufficient in light of the statutory constraint on disclosing...

Jurisdiction
Australia
Judgment Date
26 August 2015
Procedural Posture
Application for Leave to Appeal Under S 5 F(3 Aa(c)) of the Criminal Appeal Act 1912 Against a District Court Determination That Subpoenaed Documents Did Not Contain Protected Confidences / Court of Criminal Appeal Application for Leave to Appeal
Outcome
Application for leave to appeal dismissed.
Legal Topics
['sexual Assault Communications Privilege' 'protected Confidences' 'counselling Communications' 'subpoenas for Production' 'leave to Appeal Against Interlocutory Determination' 'reasons for Decision']
['criminal Law' 'evidence' 'criminal Procedure'] ['sexual Assault Communications Privilege' 'protected Confidences' 'counselling Communications' 'subpoenas for Production' 'leave to Appeal Against Interlocutory Determination' 'reasons for Decision']

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Procedural Posture

Application for Leave to Appeal Under S 5 F(3 Aa(c)) of the Criminal Appeal Act 1912 Against a District Court Determination That Subpoenaed Documents Did Not Contain Protected Confidences / Court of Criminal Appeal Application for Leave to Appeal

Legal Issues

  1. 1 ['Whether the District Court erred in finding that certain documents produced under subpoenas were not protected confidences within Chapter 6, Part 5, Division 2 of the Criminal Procedure Act 1986.' 'Whether affidavit evidence and a schedule of documents were sufficient to establish that the documents contained counselling communications.' 'Whether the District Court failed to make findings, explain its reasoning, or examine the relevant material in determining whether protected confidences existed.']

Ratio Decidendi

Leave to appeal was refused because no error was shown in the District Court's approach or conclusions. The applicant bore the onus of establishing sexual assault communications privilege but the affidavit evidence and schedule did not identify facts showing that the documents were counselling communications or derived from protected confidences. In those circumstances the District Court was required to examine each document individually, which it did, applying s 296 of the Criminal Procedure Act 1986 and withholding access where counselling communications or derivative protected material were identified. The reasons given were sufficient in light of the statutory constraint on disclosing...

Court Disposition

Application for leave to appeal dismissed.

Orders

  • ['Application for leave to appeal dismissed.']