R v Markarian [2012] NSWDC 197

R v Markarian [2012] NSWDC 197

The breadth of s 296 means communications made in confidence in relation to any harm, even unrelated to alleged sexual assault, are protected confidences. Orders for disclosure must weigh the substantial probative value against public interest in maintaining confidentiality. Disclosure was ordered for material relating to intravenous drug use, but not for other unrelated matters.

Jurisdiction
Australia
Judgment Date
23 October 2012
Procedural Posture
Criminal / Special Hearing; Disclosure Application
Outcome
Orders for partial disclosure granted
Legal Topics
['sexual Assault Communications Privilege' 'evidence' 'protected Confidence' 'disclosure of Documents']
['criminal Law'] ['sexual Assault Communications Privilege' 'evidence' 'protected Confidence' 'disclosure of Documents']

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Procedural Posture

Criminal / Special Hearing; Disclosure Application

Legal Issues

  1. 1 ["Scope of 'protected confidence' under Criminal Procedure Act s 296" 'Retrospective leave for subpoenas under Criminal Procedure Act s 298' 'Disclosure of counselling records under privilege provisions' 'Probative value of evidence versus confidentiality/public interest']

Ratio Decidendi

The breadth of s 296 means communications made in confidence in relation to any harm, even unrelated to alleged sexual assault, are protected confidences. Orders for disclosure must weigh the substantial probative value against public interest in maintaining confidentiality. Disclosure was ordered for material relating to intravenous drug use, but not for other unrelated matters.

Court Disposition

Orders for partial disclosure granted

Orders

  • ['Exhibit 3 is disclosed to the Crown and counsel for Mr Markarian.' "Those parts of the other exhibits which relate to the complainant's intravenous drug use are disclosed." 'No disclosure is ordered for documents relating to unrelated physical injuries, mental health, or alcohol consumption.']