R v Bonanno; ex parte Protected Confider [2020] NSWCCA 156

R v Bonanno; ex parte Protected Confider [2020] NSWCCA 156

Because the subpoena sought documents recording protected confidences and the District Court did not apply ss 299C or 299D of the Criminal Procedure Act 1986 (NSW) at all before granting leave, the subpoena was unlawfully issued and had to be set aside.

Jurisdiction
Australia
Judgment Date
10 July 2020
Procedural Posture
Criminal Interlocutory Appeal Under S 5 F of the Criminal Appeal Act 1912 (nsw) Concerning Sexual Assault Communications Privilege and a Subpoena for Counselling Records / Appeal From Orders of Syme DCJ in the District Court Made on 1 June 2020
Outcome
Leave to appeal granted, appeal allowed, and subpoena set aside.
Legal Topics
['interlocutory Appeal' 'sexual Assault Communications Privilege' 'protected Confidences' 'subpoena for Counselling Records' 'leave Requirements']
['criminal Law' 'criminal Procedure' 'evidence'] ['interlocutory Appeal' 'sexual Assault Communications Privilege' 'protected Confidences' 'subpoena for Counselling Records' 'leave Requirements']

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Procedural Posture

Criminal Interlocutory Appeal Under S 5 F of the Criminal Appeal Act 1912 (nsw) Concerning Sexual Assault Communications Privilege and a Subpoena for Counselling Records / Appeal From Orders of Syme DCJ in the District Court Made on 1 June 2020

Legal Issues

  1. 1 ['Whether the District Court erred by granting leave to issue a subpoena for documents containing protected confidences without complying with ss 299C and 299D of the Criminal Procedure Act 1986 (NSW).' 'Whether the subpoena for counselling records concerning the protected confider should be set aside.']

Ratio Decidendi

Because the subpoena sought documents recording protected confidences and the District Court did not apply ss 299C or 299D of the Criminal Procedure Act 1986 (NSW) at all before granting leave, the subpoena was unlawfully issued and had to be set aside.

Court Disposition

Leave to appeal granted, appeal allowed, and subpoena set aside.

Orders

  • ['Subpoena issued by her Honour Judge Syme on 1 June 2020 ordering production of documents pertaining to counselling with the complainant be set aside.' 'Grant leave to the protected confider to appeal under s 5F of the Criminal Appeal Act 1912 (NSW).' 'Allow the appeal.']