KS v Veitch [2012] NSWCCA 186

KS v Veitch [2012] NSWCCA 186

The District Court possesses jurisdiction to issue subpoenas in criminal matters after an indictment is filed and prior to arraignment. Failure to comply with the statutory requirements for leave and notice under ss 298 and 299C of the Criminal Procedure Act 1986 raises important and difficult questions of invalidity, but does not automatically render the subpoena or production of documents void. Given the paucity of judicial consideration and significance of the statutory scheme, leave to appeal was granted. The constitutional issue raised, although inadequately formulated at the time, could not be said to lack good faith and may be arguable, warranting the issuance of directions for...

Parties
Appellant: KS; Respondent: Joshua Veitch; Amicus Curiae: Attorney General (NSW); Watching Brief: Crown
Jurisdiction
Australia
Judgment Date
29 August 2012
Procedural Posture
Criminal Appeal / Interlocutory Appeal, Leave to Appeal Granted, Matter Stood Over for Further Constitutional Argument
Outcome
Leave to appeal granted; matter stood over for further hearing on constitutional issue
Legal Topics
Sexual Assault Communications Privilege, Jurisdiction of District Court in Criminal Proceedings, Subpoena Procedure in Criminal Cases, Interlocutory Appeals, Constitutional Validity of Statutory Provisions
Constitutional Law Criminal Law Statutory Interpretation Sexual Assault Communications Privilege Jurisdiction of District Court in Criminal Proceedings Subpoena Procedure in Criminal Cases Interlocutory Appeals Constitutional Validity of Statutory Provisions

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Parties

KS

Appellant

Joshua Veitch

Respondent

Attorney General (NSW)

Amicus Curiae

Crown

Watching Brief

Procedural Posture

Criminal Appeal / Interlocutory Appeal, Leave to Appeal Granted, Matter Stood Over for Further Constitutional Argument

Legal Issues

  1. 1 Whether the District Court had jurisdiction to issue the subpoena prior to arraignment
  2. 2 Whether failure to comply with leave and notice requirements under ss 298 and 299C of the Criminal Procedure Act 1986 rendered the subpoena invalid
  3. 3 Whether notices of a constitutional matter pursuant to s 78B of the Judiciary Act 1903 (Cth) should be issued

Ratio Decidendi

The District Court possesses jurisdiction to issue subpoenas in criminal matters after an indictment is filed and prior to arraignment. Failure to comply with the statutory requirements for leave and notice under ss 298 and 299C of the Criminal Procedure Act 1986 raises important and difficult questions of invalidity, but does not automatically render the subpoena or production of documents void. Given the paucity of judicial consideration and significance of the statutory scheme, leave to appeal was granted. The constitutional issue raised, although inadequately formulated at the time, could not be said to lack good faith and may be arguable, warranting the issuance of directions for...

Court Disposition

Leave to appeal granted; matter stood over for further hearing on constitutional issue

Orders

  • Grant the applicant leave to appeal pursuant to s 5F(3AA) of the Criminal Appeal Act from the interlocutory judgment of the District Court delivered on 8 May 2012.
  • Direct the respondent to file and serve a notice under s 78B of the Judiciary Act within seven days specifying the constitutional matter and annexing this judgment.