Rohan v R [2018] NSWCCA 89

Rohan v R [2018] NSWCCA 89

The trial judge correctly refused leave to issue the subpoenas because the documents sought did not, on the evidence, meet the statutory requirement of 'substantial probative value' as required by s 299D(1)(a) of the Criminal Procedure Act 1986 (NSW); evidence of the complainant not making a complaint during earlier counselling, in circumstances governed by s 294, could not have substantial probative value. Although the judge erred in concluding s 299B was irrelevant, this error did not affect the outcome because the threshold issue of substantial probative value was not met.

Parties
Applicant: Rohan; Respondent: Regina; Complainant: Protected confider (the complainant)
Jurisdiction
Australia
Judgment Date
30 April 2018
Procedural Posture
Section 5 F Appeal (interlocutory Decision) / Appeal From District Court to Supreme Court (nswcca)
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
Sexual Assault Communications Privilege, Production of Counselling Records, Leave to Issue Subpoenas, Protected Confidences, Probative Value of Evidence
Criminal Law Evidence Sexual Assault Communications Privilege Production of Counselling Records Leave to Issue Subpoenas Protected Confidences Probative Value of Evidence

Case Brief

Summary, issues, holding and outcome

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Parties

Rohan

Applicant

Regina

Respondent

Protected confider (the complainant)

Complainant

Procedural Posture

Section 5 F Appeal (interlocutory Decision) / Appeal From District Court to Supreme Court (nswcca)

Legal Issues

  1. 1 Whether the trial judge erred in refusing leave to issue subpoenas seeking production of counselling records containing protected confidences
  2. 2 Whether s 299B Criminal Procedure Act 1986 (NSW) required or permitted the production of documents to the court
  3. 3 Whether documents sought would have substantial probative value as required by s 299D(1)(a) Criminal Procedure Act 1986 (NSW)

Ratio Decidendi

The trial judge correctly refused leave to issue the subpoenas because the documents sought did not, on the evidence, meet the statutory requirement of 'substantial probative value' as required by s 299D(1)(a) of the Criminal Procedure Act 1986 (NSW); evidence of the complainant not making a complaint during earlier counselling, in circumstances governed by s 294, could not have substantial probative value. Although the judge erred in concluding s 299B was irrelevant, this error did not affect the outcome because the threshold issue of substantial probative value was not met.

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • Leave to appeal granted.
  • Appeal dismissed.