KS v Veitch (No 2) [2012] NSWCCA 266

KS v Veitch (No 2) [2012] NSWCCA 266

The subpoena was issued and documents were produced without leave contrary to s 298, but because the documents were produced only to the Court and the Court could itself have taken steps under s 299B to obtain and consider them, the irregularity could be disregarded. The constitutional challenge failed because the impugned provisions are State laws concerning evidence and procedure, within the State Parliament's power to regulate criminal trials, neither arbitrary nor manifestly disproportionate, and they protect confidences to which an accused is not presumptively entitled. However, the primary judge erred in granting access: the old counselling communications did not have substantial...

Jurisdiction
Australia
Judgment Date
10 December 2012
Procedural Posture
Criminal Appeal Concerning Subpoenaed Hospital Records and Sexual Assault Communications Privilege / Appeal to the Court of Criminal Appeal From Orders of Norrish DCJ Dated 8 May 2012 After Leave to Appeal Was Granted Pursuant to S 5 F(3 Aa) of the Criminal Appeal Act 1912 (nsw)
Outcome
Appeal allowed; the primary judge's orders and the subpoena were set aside and the documents were ordered to be returned to Cumberland Hospital.
Legal Topics
['sexual Assault Communications Privilege' 'subpoena for Counselling or Hospital Records' 'leave to Compel Production of Protected Confidences' 'fair Trial' 'limits on State Legislative Power' 'state Courts as Repositories of Federal Jurisdiction' 'reasons for Granting or Refusing Leave']
['criminal Law' 'constitutional Law' 'evidence and Procedure'] ['sexual Assault Communications Privilege' 'subpoena for Counselling or Hospital Records' 'leave to Compel Production of Protected Confidences' 'fair Trial' 'limits on State Legislative Power' 'state Courts as Repositories of Federal Jurisdiction' 'reasons for Granting or Refusing Leave']

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Procedural Posture

Criminal Appeal Concerning Subpoenaed Hospital Records and Sexual Assault Communications Privilege / Appeal to the Court of Criminal Appeal From Orders of Norrish DCJ Dated 8 May 2012 After Leave to Appeal Was Granted Pursuant to S 5 F(3 Aa) of the Criminal Appeal Act 1912 (nsw)

Legal Issues

  1. 1 ['Whether a subpoena seeking production of documents covered by sexual assault communications privilege was effective where issued without leave of the Court.' 'Whether ss 298(1) and (2), together with s 299D, of the Criminal Procedure Act 1986 (NSW) were constitutionally valid.' 'Whether the primary judge erred in ordering that certain documents produced in answer to the subpoena be made available to the respondent.']

Ratio Decidendi

The subpoena was issued and documents were produced without leave contrary to s 298, but because the documents were produced only to the Court and the Court could itself have taken steps under s 299B to obtain and consider them, the irregularity could be disregarded. The constitutional challenge failed because the impugned provisions are State laws concerning evidence and procedure, within the State Parliament's power to regulate criminal trials, neither arbitrary nor manifestly disproportionate, and they protect confidences to which an accused is not presumptively entitled. However, the primary judge erred in granting access: the old counselling communications did not have substantial...

Court Disposition

Appeal allowed; the primary judge's orders and the subpoena were set aside and the documents were ordered to be returned to Cumberland Hospital.

Orders

  • ['Allow the appeal.' 'Set aside the orders of Norrish DCJ dated 8 May 2012.' 'Set aside the subpoena dated 19 April 2012 addressed to the Health Information and Records Service, Cumberland Hospital.' 'Return the documents produced pursuant to the subpoena to the Cumberland Hospital.']