ER v Khan

Court of Criminal Appeal (NSW)|2015-07-22|Before: Hoeben CJ, Hall J, Button J

Solicitors: Stidwill Solicitors (Applicant) File Number(s): 2014/331285 Decision under appeal Court or tribunal: District Court Date of Decision: 8 May 2015 and 20 May 2015 Before: McClintock DCJ File Number(s): 2014/331285

Judgment

HOEBEN CJ at CL: I agree with Hall J.
HALL J: These proceedings are brought by the applicant, ER, pursuant to s 5F (3AA(c)) of the Criminal Appeal Act 1912 for leave to appeal against a determination made by the District Court of New South Wales (his Honour, Judge McClintock SC) on 20 May 2015 that documents produced under two subpoenas do not contain protected confidences within the meaning of Division 2 of Part 5 of Chapter 6 of the Criminal Procedure Act 1986.

Documents Sought Under Subpoena

On 17 April 2015, the respondent issued two subpoenas for production of documents in the District Court proceedings, one addressed to the Commissioner of Police ("the Commissioner") and the other to the Department of Family and Community Services ("FACS"). They were both returnable on 21 April 2015.
The Commissioner and FACS applied to have the respondent/accused's subpoenas set aside and for an order preventing access to the subpoenaed documents on the basis that they were privileged.
McClintock DCJ heard and subsequently determined all issues raised in relation to the subpoenaed documents by two separate judgments, the first delivered on 8 May 2015 and the second on 20 May 2015.
In the first judgment, McClintock DCJ effectively refused the applications by the Commissioner and FACS to set aside the subpoenas.
In the second judgment, his Honour noted that the material identified in the subpoenas had been produced and that access to it was sought (p 2). His Honour there noted: "The issue in the present judgment is whether all, or any, of the documents subpoenaed fall within the ambit of Division 2 Part 5 of the Criminal Procedure Act 1986. In other words, are there documents the subject to [sic] sexual assault communications privilege. The subpoenas as they were drafted specifically indicated that they did not seek material that was the subject of sexual assault communications privilege. The accused does not seek access to that material. No leave was sought or given for the issue of the subpoenas. No issue is taken in respect of leave to issue. Mr Stidwill, who appears for the protected provider, claims in written submissions that the whole of the documents produced are protected confidences. It becomes necessary to examine what are 'protected confidences'."
On the hearing of the application to set aside the subpoenas the respondent affirmed that no confidential communications were sought pursuant to them.
In the first of two hearings, the Commissioner and FACS submitted to McClintock DCJ that the subpoenas should be set aside for want of legitimate forensic purpose and upon the basis that the proper application of the Uniform Civil Procedure Rules 2005 rendered any records inadmissible. The applicant/complainant was separately represented on the application to set aside the subpoenas. By the submissions advanced on her behalf she joined submissions made on behalf of the Commissioner and FACS that there was no legitimate forensic purpose for them.
As noted in the respondent's written submissions, in the judgment of 8 May 2015, his Honour, Judge McClintock observed: "The fundamental issues in the trial centre on the credit of the complainant; whether her account of the incidents and her assertion, in particular that sexual intercourse took place without her consent, can be believed. She is the sole witness and for the prosecution to succeed, her account of the offences must be believable beyond reasonable doubt. The material subpoenaed points to unreliability and has apparent relevance and possible utility to the defence (p 23) …"
Following his Honour's ruling on 8 May 2015, the applicant/complainant, sought a determination that the documents produced by the Commissioner and FACS were "confidential communications". Whilst an order for access to the documents produced under the subpoenas was sought by the respondent, it was again emphasised in the submissions for the respondent that no protected confidences were sought.
The documents that had been produced by the Commissioner and FACS were tendered in order to permit his Honour to make the relevant determinations. In addition, affidavits were read (discussed below) and a summary of each of the separate documents was provided to his Honour by the applicant.
His Honour made determinations with respect to each of the separate documents. There were 15 separate determinations in relation to the documents produced by the Commissioner. There were 115 separate determinations made in relation to the FACS documents produced in answer to the subpoena, making a total of 130 documents. They included more than 240 pages of material that had been produced in the FACS file alone.
On 20 May 2015, as earlier indicated, his Honour determined that each individual document produced by the Commissioner was not a protected counselling communication. His Honour individually determined whether each of the documents produced by FACS constituted a protected counselling communication. His Honour made a number of determinations in respect of certain FACS documents that they were not protected confidences.
It is in respect of these determinations that the current application is made to this Court.

(a) The Scheme

Before turning to the submissions made on behalf of the parties to the present application, it is necessary to refer in some detail to the scheme that provides for sexual assault communications privilege and which privilege operates to prevent the disclosure of communications that were made for the purpose of counselling a complainant of sexual assault in the circumstances prescribed by Chapter 6, Part 5, Division 2 of the Criminal Procedure Act.
Part 5 - Evidence in sexual offence proceedings - contains four Divisions. Division 2 contains provisions that establish and concern the privilege, entitled "Sexual assault communications privilege", in respect of protected confidences. Division 2 comprises ss 295-306 of the Criminal Procedure Act. Central to his Honour's judgment of 20 May 2015 was the question as to whether the documents produced under the subpoenas were, or related to, a protected confidence under s 296 and for that purpose, as his Honour observed, it was necessary for him to inspect each document: Judgment, 20 May 2015 at p 9.
His Honour observed that in the event of a determination being made that any particular document constituted a protected confidence, a number of issues would arise in respect of granting leave (in particular, issues arising in terms of the provisions of s 299D). His Honour observed: "… however such issues do not arise in the present circumstances as the accused does not presently seek access to any relevant counselling communication." (at p 9)
His Honour proceeded: "It is necessary to consider whether the communications in the documents are within the definition of a 'counselling communication'. A first step is that counselling communications cannot be made unless they are made in confidence." (at p 9)
His Honour, after referring to the fact that different views had been expressed as to the ambit of the expression "counselling communication" (at pp 9-10), observed: "The precise interpretation of the ambit of the provisions was not authoritatively determined by the decision in KS v Veitch (No 2) (2012) 84 NSW Law Reports 172. I tend to sympathise with the reasoning of his Honour Judge Williams in Veitch (2013) 16 District Court Reports 181 at par 23, in respect of the definition. However in these proceedings, I take a much broader view than Judge Williams in relation to the ambit of 'counselling', accepting that it incorporates counselling relevant to the present circumstances that relates to prior sexual assaults. In the circumstances, I find it covers the present counselling in respect of alleged sexual assaults other than sexual assaults that are the subject of the proceedings." (at p 10).

(b) The Relevant Provisions

Section 295(1) contains definitions of words and expressions employed in Division 2.
"Principal protected confider" means "the victim or alleged victim of a sexual assault by, to or about whom a protected confidence is made".
As to the expression "Protected confidence" the definition provision states "see section 296".
"Protected confider", in relation to a protected confidence is defined as meaning: (a) the principal protected confider, or (b) any other person who made the protected confidence.
"Sexual assault offence" is defined as meaning: (a) a prescribed sexual offence, or (a1) acts that would constitute a prescribed sexual offence if those acts (i) had occurred in this state, or (ii) had occurred at some later date, (iii) had occurred in this State and occurred at some later date, or (b) any other offence prescribed by the regulations for the purposes of this definition.
Section 295, Interpretation, includes in subsection (2) the following: "Document recording a protected confidence In this Division a reference to a document recording a protected confidence: (a) is a reference to any part of the document that records a protected confidence or any report, observation, opinion, advice, recommendation or other matter that relates to the protected confidence made by a protected confider, and (b) includes a reference to any copy, reproduction or duplicate of that part of the document."
Section 296 is in the following terms: 296 What is a protected confidence? (1) In this Division: protected confidence means a counselling communication that is made by, to or about a victim or alleged victim of a sexual assault offence. (2) A counselling communication is a protected confidence for the purposes of this Division even if it: (a) was made before the acts constituting the relevant sexual assault offence occurred or are alleged to have occurred, or (b) was not made in connection with a sexual assault offence or alleged sexual assault offence or any condition arising from a sexual assault offence or alleged sexual assault offence. (3) For the purposes of this section, a communication may be made in confidence even if it is made in the presence of a third party if the third party is present to facilitate communication or to otherwise further the counselling process. (4) In this section: counselling communication means a communication: (a) made in confidence by a person (the counselled person) to another person (the counsellor) who is counselling the person in relation to any harm the person may have suffered, or (b) made in confidence to or about the counselled person by the counsellor in the course of that counselling, or (c) made in confidence about the counselled person by a counsellor or a parent, carer or other supportive person who is present to facilitate communication between the counselled person and the counsellor or to otherwise further the counselling process, or (d) made in confidence by or to the counsellor, by or to another counsellor or by or to a person who is counselling, or has at any time counselled, the person. (5) For the purposes of this section, a person counsels another person if: (a) the person has undertaken training or study or has experience that is relevant to the process of counselling persons who have suffered harm, and (b) the person: (i) listens to and gives verbal or other support or encouragement to the other person, or (ii) advises, gives therapy to or treats the other person, whether or not for fee or reward.
The provisions of s 299 address the requirement that a witness, party or protected confider who may have grounds for making an application under Division 2 for objecting to the production of a document or the adducing of evidence be provided with a reasonable opportunity to seek legal advice.
Section 299A provides that a protected confider who is not a party may appear in criminal proceedings or preliminary criminal proceedings if a document is sought to be produced or evidence is sought to be adduced that may disclose a protected confidence made by, to or about the protected confider. As noted above, the applicant/complainant had standing by virtue of s299A and was heard on the respondent's application.
Section 299B deals with the basis for determining whether there is a protected confidence. It is in the following terms: 299B Determining if there is a protected confidence (1) If a question arises under this Division relating to a document or evidence, a court may consider the document or evidence. (2) If there is a jury, the document or evidence is to be considered in the absence of the jury. (3) A court must not make available or disclose to a party (other than a protected confider) any document or evidence to which this section applies (or the contents of any such document) unless: (a) the court determines that the document does not record a protected confidence or that the evidence would not disclose a protected confidence, or (b) a party has been given leave under this Division in relation to the document or evidence and making available or disclosing the document or evidence is consistent with that leave. (4) A court may make any orders it thinks fit to facilitate its consideration of a document or evidence under this section. (5) This section has effect despite sections 297 and 298.

The District Court's Determination in this Case

In his judgment of 20 May 2015, his Honour specifically considered the provisions concerning protected confidences, including in particular the definition of "counselling communication" (at pp 7-9).
He noted that it had been submitted on behalf of the applicant/complainant that the whole of the FACS file was a protected confidence under s 296(1) and that this was said to be so because: "… anything contained therein was made because of the current allegations or made before the current allegations or was made in connection with allegations. He asserts that whilst the file contains documents which are not, on their face, contact between the author of the document and the Protected Confider, nevertheless section 295(2) protects the documents because they are reports, observations et cetera that relate to the protected confider. The effect of the ambit of Mr Stidwill's submissions is that anything said by a FACS officer in the file concerning the Protected Provider is protected. This has the somewhat unusual effect of apparently protecting any police documents that appear in the FACS files. Further, as I understand it, it is his submission that because investigations are undertaken by a Joint Investigation Response team (JIRT) which includes FACS officers, everything associated with the investigation is privileged." (at pp 10-11)
His Honour then proceeded: "I am of the view that the provisions are designed to protect the Protected Provider from disclosure of matters relating to counselling with its focus on harm and on persons trained to find and treat such harm. It is not intended to protect the Protected Person from disclosures relating to reports about them that do not originate from such processes or do not refer to such process. However, as I have already noted, I do accept that the provision relates to counselling that predates the existence of the sexual assault the subject of the present charges. The wide ambit of the definitions seem to accept that counselling a person in respect of a previous sexual assault is caught by the sections and accordingly I intend to apply that when considering each piece of individual material." (at p 11)
His Honour observed that the decision of this Court in PPC v Williams [2013] NSWCCA 286 had the effect of requiring him to go through every document in the files produced and make a determination in respect of whether each concerned matters related to counselling as defined. His Honour stated: "In this process I use an interpretation of counselling which includes any counselling of the Protected Provider in respect of any sexual assault." (at p 11)
His Honour referred to a "Schedule of Claims" prepared by Mr Stidwill who appeared in the District Court on behalf of the applicant/complainant. His Honour stated that he was required to consider each document or class of document (if such an attribution was possible): "… to ascertain whether they fall within the ambit of the section as a protected confidence. I do not have to consider whether leave is to be granted and if they fall within section 299D." (at pp 11-12)
The documents that were referred to in the above schedule were each identified by date and page, the documents not having been sequentially numbered. His Honour then made rulings in respect of the particular documents at pages 12-29 of the second judgment delivered on 20 May 2015. Pursuant to those rulings, access was denied in relation to some documents while being granted in relation to others. The applicant/complainant contends that access should not have been granted to certain documents.

Amended Grounds - An Application for Leave to Appeal

The applicant in support of her application relied upon the following two amended grounds: 1. His Honour erred in finding that certain documents produced under subpoenas were not protected confidences. 2. His Honour erred in that he: a. failed to make findings on the central issue, ie protected confidence and counselling communications. b. failed to explain how the findings he made were arrived at including reviewing the evidence and making findings upon it. c. failed to make note of all that was necessary to enable the case to be laid properly and sufficiently before an appellate court. d. erred in the fact-finding process in that he failed to examine the relevant material, make findings of fact so as to determine if there existed counselling communications.

Evidence

The application book filed in this Court contained copies of the following: 1. Affidavits relied upon by the applicant in the District Court proceedings, namely:

Affidavit of Dominique Reyes affirmed 27 April 2015;
Affidavit of Cora Ingram affirmed 28 April 2015;
Affidavit of Hala Ghazzaoui affirmed 15 May 2015. 1. Transcript of evidence of Ms Ingram given on 18 May 2015. 2. Child Protection Unit (CPU) document (Exhibit 8). 3. Memorandum of Understanding establishing the Joint Investigation Response Team (JIRT) (Exhibit 9). 4. A schedule to Ms Ghazzaoui's affidavit.

Submissions for the Applicant - Ground 1

The applicant relied upon written submissions dated 13 July 2015 which were supplemented at the hearing of the application for leave to appeal.
At the hearing of the application for leave to appeal, Mr Little of counsel for the applicant/complainant provided this Court with a bundle of FACS documents being part of the documents considered by McClintock DCJ. However, no specific reference was made to them in the course of submissions.
As to the question of leave, it was submitted that leave should be granted on the basis that there is no authority binding on courts of first instance dealing with: "● the nature and extent of the privilege; ● whose privilege it is; ● how and when it [may] cease or be removed; ● what occurs if confidences are communicated without consent or misconduct to others, eg, by and to police." (Applicant's Written Submissions at pp 1-2)
A further ground for leave was stated to be that the applicant has no other remedy and there is a potential injustice if the arguments advanced are held to be the law (Written Submissions at p 2).

Sexual Assault Communications Privilege

It was submitted for the applicant that the provisions of Chapter 6, Part 5, Division 2 of the Criminal Procedure Act created a new form of privilege. They were said to constitute beneficial legislation which protected complainants in cases alleging sexual assault and that the legislation should to be interpreted purposively in giving effect to the policy as discussed, in particular, in KS v Veitch (No 2) [2012] NSWCCA 266; (2012) 84 NSWLR 172 at [18] and [34].
It was observed that the privilege is that of the confider and the subject of it was stated to be: "… the actual confidence and the recording of it in evidence or a document attracts the privilege simply because the confidence is recorded there." (Written Submissions at p 4)
It was further submitted: "It follows that a restatement of the privilege within records does not give rise to a loss of the privilege or the passing on of details to another agency eg, police where the accused does not actively consent or loses it because of the effect of s 301." (Written Submissions at p 4)
It was further observed that for a person to be counselled about an event there needs to be a history or statement of what the event was and that its re-statement within records of an institution such as FACS does not remove the privilege. It was noted: "Obviously if she [the applicant] then makes a fresh communication including say in the nature of a statement then there is no privilege attaching to that fresh communication." (Written Submissions at p 4)
It was further submitted: "The issue before the District Court should have been limited to the question 'Was there a record of a protected confidence?' And if so there was to be no access claimed nor sought." (Written Submissions at p 4)
The submissions then addressed provisions as to the meaning of "protected confidence" (s 291(1))
The Schedule to Ms Ghazzaoui's affidavit set out the general nature and description of the claim for privilege in respect of each document to which access was sought together with the role and identity of any counsellor referred to in a particular document.
It was submitted for the applicant that there was sufficient evidence in the Schedule, combined with the evidence in Ms Reye's affidavit, to find that the documents in question contained "counselling communications" as defined in the Act (Written Submissions at p 7).

Respondent's Submissions - Ground 1

In the respondent's written submissions it was stated that what is protected by the terms of the legislation is "confidential counselling, not reports to police, or documents generated during police or FACS investigations" (at [44]).
Further, it was submitted that there is no indication in the legislation that: "… reports to Police or FACS would be subject to any privilege. Given that such reports arise in almost every criminal trial where there is a sexual assault complaint, the absence of any reference to such reports or documents must be deliberate …" (Respondent's Written Submissions at [46])
Reference was made in the respondent's written submissions to the second reading speech in relation to the Criminal Procedure Amendment (Sexual Assault Communications Privilege) Bill (2002) in which the then Attorney-General referred to the policy behind the provisions establishing the privilege: "[T]he policy behind the sexual assault communication privilege is that the benefits of counselling services provided to sexual assault victims should not be compromised by the prospect that communications made in connection with those services may later be revealed to the accused or disclosed in court."
The respondent submitted: "What has been enacted and amended numerous times is a detailed and clear legislative scheme for the protection of sexual assault counselling communications. The respondent seeks no such material. There is a vast difference between the counselling notes of a treating sexual assault counsellor on the one hand, describing personal thoughts, feelings and private information, and documents generated by the police or FACS on the other. Once a complaint has escalated to FACS or to the police, confidentiality can no longer apply to events that then occur; records kept of those events do not have the quality of counselling. Any reasonable expectation of confidentiality must by then be lost." (Respondent's Written Submissions at [49])
In relation to the issues raised by Ground 1, the respondent noted that he is necessarily constrained by the lack of access to the material produced and any further information about such material.
It was noted that if a document is a "counselling communication" then it must also fit within the definition of a "protected confidence". To do so it must be a counselling communication made by, to or about the alleged victim. Read as a whole, s 296 contemplates that the communication referred to is the communication between the victim and the treating professional (with the single exception of a third person who is present to facilitate that communication or process): Respondent's Written Submissions at [52].
It was submitted that reporting a matter to police, a police investigation, notes about such an investigation, the opinions of the police or the result of investigations are clearly not "counselling communications" and cannot be "protected confidences": Respondent's Written Submissions at [52].
Emphasis was given to the inclusion in s 296(4) of the words "made in confidence" as indicating the fundamental quality that a communication must have to permit categorisation of it as a "counselling communication": Respondent's Written Submissions at [53].
It was contended for the respondent that his Honour did not fail to identify the essential issue, namely, whether any of the subpoenaed documents were "the subject of sexual assault communications privilege" (Judgment at p 2). It was noted by the respondent that his Honour had then identified the need to examine what were "protected confidences", and set out the relevant provisions of Division 2. His Honour observed in relation to his approach: "Where I identify a counselling communication relating to either the present matter or any other sexual assault matter or harm matter, I will indicate that that document falls within the ambit of the division [and not grant access]." (Judgment at p 15)
The respondent's submissions noted that his Honour carefully considered each document. This was said to be evident from the fact that at the end of the lengthy exercise undertaken, his Honour's ruling disclosed four distinct determinations: "(a) documents that were clearly not protected confidences that were to be released; (b) documents over which there attached some uncertainty and upon which his Honour reserved pending further consideration; (c) documents where there was 'derivative' counselling material and which therefore contained protected disclosures and were not to be released; and (d) documents that contained direct reference to counselling and were accordingly not to be released." (Respondent's Written Submissions at [58])
It was noted that his Honour made a number of determinations of "counselling" or "counselling document" and declined to grant access to such documents. It was submitted that his Honour's analysis indicated a "sound interpretative method" and that no error was demonstrated either in the identification of the issue before the Court, nor in the determination of that issue.
It was submitted for the respondent that the findings made were open and that no error had occurred: Respondent's Written Submissions at [62].

Ground 1

The subpoenas to the Commissioner and to FACS were drafted upon the basis that they did not seek material that was the subject of sexual assault communication privilege. A statement to that effect appeared in the Schedule to each subpoena.
In determining Ground 1, which in essence concerns the status or character of the subpoenaed documents, it is necessary to consider the nature and scope of the statutory privilege conferred by the provisions of Chapter 6, Division 2, Part 5 of the Criminal Procedure Act.
Sexual assault communication privilege attaches to a "protected confidence", an expression that takes its meaning from s 296. Section 296(1) provides that "protected confidence", inter alia, means a counselling communication that is made by, to or about a victim or alleged victim of a sexual assault offence.
The provisions of s 296 (set out in para [33] above) establish the statutory concept of a "counselling communication". They define the metes and bounds of "protected confidence".
Central to sexual assault communications privilege are the concepts of "confidence" and "counselling". They arise and apply where a victim or alleged victim of a sexual assault offence has participated in "counselling" provided or conducted by a "counsellor". Those concepts represent the foundation‑stone for the statutory privilege established by Division 2.
In determining a claim of privilege under that Division it is necessary to determine in a particular case whether there existed a "counselling communication" within one or other of the four categories established by s 296(4).
The first category is directed to a communication made by the counselled person "in confidence" to a counsellor being a person "who is counselling the person" etc: s 296(4)(a).
Under s 296, the second category includes communications either to or about the counselled person by a counsellor in the course of the communication made "in confidence": s 296(4)(b).
"Counselling communication" within the third category includes a communication made by specified persons "about the counselled person", namely communications either by a counsellor or a parent, carer or other supportive person present to facilitate communication between the counselled person and the counsellor or to otherwise further the counselling process: s 296(4)(c).
"Counselling communication" within the fourth category includes a communication made either by or to the counsellor "in confidence", or by or to another counsellor or by or to a person who is counselling, or has at any time counselled, the person: s 296(4)(d).
In the present case a claim of sexual assault communications privilege was essentially sought on the basis of communications made either by or to the applicant/complainant or by others, including a counsellor.
Whether or not a "counselling communication" existed in relation to any particular document depends upon the proper interpretation and application of the relevant provisions including, in particular, those in s 296(4) and (5) discussed above and the nature or content of the document.
In determining if a protected confidence exists in relation to a particular document or other record a court is, of course, entitled to do so on the basis of an examination of the contents of a document or record and, as well, upon the basis of any evidence concerning or relating to the same or both: s 299B(1). As to the latter, the evidence in the present proceedings, including in particular the affidavit evidence referred to above at [44], is examined below.
In determining if there is a protected confidence, s 299B(3) places constraints upon the court once a determination is made. Section 299B(3) provides: (3) A court must not make available or disclose to a party (other than a protected confider) any document or evidence to which this section applies (or the contents of any such document) unless: (a) the court determines that the document does not record a protected confidence or that the evidence would not disclose a protected confidence, or (b) a party has been given leave under this Division in relation to the document or evidence and making available or disclosing the document or evidence is consistent with that leave.
McClintock DCJ gave particular attention to the provisions of s 299B at pages 2‑8 of his Honour's judgment. This is a relevant matter in relation to Ground 2 of the application for leave to appeal.
There was, and could have been, no issue as to the onus or burden of proof in establishing sexual assault communications privilege. As to the issue of the onus on a claim for legal professional privilege see Kennedy v Wallace (2004) 142 FCR 185; [2004] FCAFC 337 at [13]. Whilst the provisions of Division 2 do not expressly deal with that aspect, Mr Little of counsel, on behalf of the applicant, properly conceded that his client, in claiming that the documents in question were privileged, carried the onus of establishing that proposition.
In the present case, it was open to the applicant to establish sexual assault communication privilege by evidence, including the evidence of any relevant counsellor and/or any other person in order to establish the nature or character of particular documents/records, as being, for example, a counsellor's record of counselling communications such as notes or reports relating to a protected confidence that fell within one of the four categories referred to in s 296(4).
The evidence does not indicate or establish that Ms Reyes, Ms Ingram or Ms Ghazzaoui had, alone or in conjunction with others, counselled the applicant within the terms of s 296(4) and (5). The applicant's written submissions at pages 6-7 stated that Ms Reyes and Ms Ghazzaoui held qualifications and job descriptions of "a counsellor". However, the evidence did not establish that any of them acted as a "counsellor" to the applicant as, for example, by providing support, advice, therapy or treatment for her in the course of counselling. The evidence of Ms Reyes, Ms Ingram and of Ms Ghazzaoui was not directed to establishing that any one of them had been a party to a "counselling communication" within s 296(4).
Ms Reyes is an Acting Manager of Casework at the Joint Investigation Response Team (JIRT). She is a caseworker with FACS and she is also attached, as I have stated, to the JIRT. Ms Reyes stated that she perused the FACS file in relation to the applicant and in paras [7] to [31] of her affidavit made comments and observations upon specified documents on the FACS file. One of the documents had been prepared by her (referred to in para [16] of her affidavit). However, Ms Reyes' affidavit does not state or identify that any document or record was in fact a protected confidence/counselling communication within s 296. Whilst the nature of the documents referred to in her affidavit and the circumstances in which they were created were addressed in her affidavit, there is no statement or indication by Ms Reyes that those documents were documents falling within s 296 or contained information based on or derived from communications made "in confidence" between the applicant and "a counsellor". Nor were any facts or circumstances identified which characterised documents as counselling communications.
Ms Ingram is employed by FACS, as at the date of her affidavit, as Manager, Client Services, Eastern Sydney Community Service Centre. In her affidavit Ms Ingram stated: "4. I have reviewed the documents collated by FACS which are responsive to the subpoena issued by the defence in this matter. 5. I object to production of these documents. The documents contain material relating to the sexual reputation of the complainant (ie [ER]) and/or evidence that discloses or implies that the complainant may have had sexual experience or lack of sexual experience and that the complainant has or may have taken part or not taken part in sexual activities. 6. I further object to production of the documents to the extent that they represent protected confidences within the meaning of s 296 Criminal Procedure Act 1986. From my review of the documents I believe that there are some documents which fall into this category. 7. I further object to producing the documents to the extent that they contain information that could identify, or tend to identify, the author or [sic - of] reports in contravention of s 29 Children and Young Persons (Care and Protection) Act 1998. From my review of the documents I believe that there are some documents which fall into this category."
Ms Ingram did not identify any facts or circumstances which supported her implication that amongst the documents produced were documents that contained protected confidences.
Ms Ghazzaoui, caseworker with FACS was attached to the JIRT. Ms Ghazzaoui in her affidavit at para [5] stated: "I have worked with [ER] for a period of about 12 months. During that time I have counselled her regarding events occurring in her life pre August 2014. It is my opinion that [ER] would be greatly distressed if the events in her life not relating to the present charges were revealed to the accused or his legal team. I have witnessed [ER] distressed on a number of occasions when recounting events in her life to myself and other co workers."
Ms Ghazzaoui did not address in any of the paragraphs of her affidavit the character or status of particular documents the subject of the privilege claim.
The Schedule to Ms Ghazzaoui's affidavit comprises 15 pages. As noted above, it set out information under a number of headings, being Document Number, Document Title, Date of Document, Nature and Description of Claim and Role and Identity of Counsellor.
In general terms, the information in the Schedule as to "Nature and Descriptions of Claim" consists of short or summary descriptions as to the circumstances in which particular documents were prepared. These included, for example, documents prepared by FACS caseworkers at community service centres operated by FACS, in some instances, based on or containing information from "contact records" or "reports" created from information given to the Child Help Protection Line. Other records included:

Departmental (FACS) File notes.
Home visit notes.
JIRT interviews between specified personnel.
Helpline caseworker notes.
JIRT summaries based on contact reports.
JIRT documents summarising JIRT actions and recording information received by caseworkers.
FACS summaries of applicant's history with FACS prepared by a FACS caseworker, being a summary of departmental records.
Documents recording exchanges of information between police and FACS.
Caseworker summaries concerning the applicant sourced from departmental databases including contact reports and other documents.
A document for a meeting between police and FACs prepared from contact records.
An assessment prepared to detail allegations and the JIRT response.
A briefing note used at a meeting between Police, FACS and Department of Health.

In relation to the Schedule I note: 1. The entries under "Nature and descriptions of claim" do not expressly identify or refer to any particular document as being in fact a record of a "counselling communication" within the meaning of s 296 or as containing information derived from a counselling communication(s). 2. Although the Schedule contains the names of persons under the sub-title "Role and identity of counsellor" it is clear from the terms of the Schedule that the persons so identified were not stated to have in fact undertaken counselling of the applicant within the meaning of s 296(4) or (5) or in particular, to have participated in a counselling communication with the applicant.
As noted above, the evidence tendered in the District Court hearing included the JIRT Memorandum of Understanding. It is clear from that document that the role and responsibilities of officers who participated in JIRT activities or operations acted in joint investigatory activities and not activities involving or concerned with counselling communications within s 296.
There was, in my assessment, no basis in the affidavit evidence before McClintock DCJ for a conclusion that any contact records or other documents referred to in the Schedule of Documents to Ms Ghazzaoui's affidavit related directly to or were created derivatively from any counselling communications involving or concerning the applicant (subject to observations made below at [113]-[116]).
In those circumstances, his Honour was required to proceed to determine the status or character of the subpoenaed documents and the claim of sexual assault communications privilege by a process of examining each document. This his Honour did with observations made by him in relation to each. I will return to this aspect below in relation to Ground 2.
It is noted here, however, that his Honour upheld the claim of privilege in respect of a number of documents referred to in the Schedule to Ms Ghazzaoui's affidavit.
I would not uphold Ground 1.

Ground 2

The applicant, as earlier noted, submitted that his Honour had erred in the respects set out in Ground 2(a), (b), (c) and (d) in the amended grounds. Each of those sub-paragraphs asserts error upon different bases. Properly understood they essentially assert error by the judge by way of failures by him to make "findings" as to "protected confidences" and "counselling communications" together with an asserted failure by his Honour to explain his reasoning process in relation to the rulings made, and a contention that his Honour failed to examine "relevant material".
The matters raised by Ground 2(a), (b), (c) and (d) must be considered in the particular context of the case, including the evidence adduced before his Honour, and the basis upon which he was required to determine the privilege claim. As to matters of context I note the following matters.
As earlier observed, the affidavit material relied upon by the applicant/complainant before the judge was not directed to establishing relevant factual matters to support the privilege claimed. In relation to a claim for client legal privilege the authorities emphasise the need for focused and specific evidence in order to ground a claim for the privilege: see Barnes v Federal Commissioner of Taxation [2007] FCAFC 88 at [18]; Bailey v Department of Land and Water Conservation [2009] NSWCA 100; (2009) 74 NSWLR 333 at [40]. The same requirement, in my opinion, exists with a claim for sexual assault communications privilege where there is a need for evidence to support his claim.
In Kennedy v Wallace, supra, Black CJ and Emmett J observed: "Mr Kennedy's claim to legal professional privilege depends upon a positive finding about the purpose for which the two documents were brought into existence. The only evidence consisted of the assertions made by Mr Kennedy in his affidavits. Those assertions are conclusions that are not supported by any revealed reasoning process. Mr Kennedy gave no evidence as to the topics upon which he intended to consult Mr Hafner. He gave no evidence as to what he meant by 'obtaining legal advice' in his affidavit of 1 March 2004. The appellant's decision to base his claim for privilege in this way was attended with considerable risk since, as Lockhart J observed in National Crime Authority v S (1991) 29 FCR 203 at 211; 100 ALR 151 at 159, it is not sufficient for a party merely to assert a claim for privilege nor will an affidavit asserting the purpose for which the document was brought into existence followed by a statement about the category of legal professional privilege to which the document is said to belong necessarily be sufficient. Moreover, in the leading case of Grant v Downs (1976) 135 CLR 674; 11 ALR 577, Stephen, Mason and Murphy JJ warned against the erroneous view that the privilege is 'necessarily or conclusively established by resort to any verbal formula or ritual': at CLR 689; ALR 589. In the same case, their Honours also observed that whatever the facts may be, it is always for the party claiming privilege to show that the documents for which the claim is made are in fact privileged." (at [12]-[13])
In the circumstances in which his Honour did not have the benefit of any evidence directly relevant to the characterisation of a very large number of documents, he was necessarily limited to examining each document and basing each determination as to "protected confidence" and "counselling communication" from the nature and/or contents of each.
In circumstances such as these, the practical difficulties that face a judge in determining the existence of a protected confidence has previously been the subject of attention and discussion in NAR v PPC1 [2013] NSWCCA 25. Adams J observed: "Speaking generally, it is obvious that the s 299D issues cannot be considered without examining the documents themselves or having sufficient information to make what might be called the statutory inquiries. The practical reality will almost invariably be that the documents have to be examined. That, indeed, was this case. Since reading the material was essential, the learned trial judge, in my respectful view, had a duty to do so, regardless whether or not it was requested. The application for access, which enlivened s 299D, of necessity implied a request to examine the material. (In my view, it should be inferred that his Honour did examine it.) I readily acknowledge that this places a heavy burden on trial judges but it is an inescapable consequence of the draconian terms in which the legislation is drafted. It might be appropriate for the Parliament to consider empowering the judge to give access to counsel for the Crown and defence to examine the material and make submissions (perhaps in writing to preserve confidence) on whether, and in what way, the s 299D tests are or are not satisfied. This would considerably simplify the judge's task. Such access could be subject to non-publication conditions, including a prohibition on disclosing the material to any other persons, including of course, either police or the accused." (at [4])
In an article published in the Judicial Officers' Bulletin, April 2015, Vol 27, No 3, entitled "Use of the sexual assault communications privilege in sexual assault trials" by Ian Nash, Public Defender, the observation was made: "As the legal representatives of the parties (other than those of the protected confider) can't examine the documents prior to access being granted, their ability to assist the court is extremely limited (s 299B(3)). This creates particular difficulties when large quantities of documents fall within the terms of the subpoena and there is a dispute about whether any contain counselling communications. Judges are forced to examine each and every document, or each category of document (where documents related to the same incident or issue concerning the applicant) themselves for the purposes of determining the existence of any protected confidence."(at p 26)
As is apparent from the provisions of s 299B(1) (reproduced in para [36] above), a court determining a claim of sexual assault communications privilege may consider both the documents in question and/or evidence about them or their contents. Additionally, s 299B(4) provides: "A court may make any orders it thinks fit to facilitate its consideration of a document or evidence under this section."
This provision confers power upon a court to make orders that facilitate the task of determining whether sexual assault communications privilege exists. It has been observed in relation to client legal privilege, that a court may make orders allowing evidence to be given in confidence under such conditions as to preserve the claimed privilege (which the evidence was adduced to support): Kennedy v Wallace, supra, per Black CJ and Emmett J at [17]. Section 299B(4) in my opinion would similarly permit such a course to be taken when determining a question of sexual assault communications privilege.
Regrettably, without evidence that addressed the facts said to found the privilege, his Honour was in a position whereby, doing the best he could, he was required to make rulings based on the contents of each of the documents. This is the relevant context to which I have earlier referred in considering Ground 2.
Ground 2, in my opinion, proceeds upon the basis that there were factual questions requiring resolution or findings to be made on evidence. His Honour's task, as I have indicated, was essentially an interpretive exercise based wholly upon an examination of each of the documents in question, there being no specific evidence that addressed or focused upon the circumstances in which documents were created or their possible connection with any protected confidence or counselling communications.
An examination of the judgment of 20 May 2015, in particular in respect of the rulings at pages 12 to 29 under the sub-heading "Analysis of the Documents" reveals a methodical and careful examination made by his Honour in respect of which I note the following: 1. The examination of each document was conducted with the relevant provisions of s 296 well in mind. 2. Where there was a basis for a conclusion that certain documents were protected by the privilege his Honour so stated. 3. In relation to documents in which the position was not sufficiently clear for a determination of the claimed privilege to be made, his Honour reserved for further determination the claim in respect of such documents. 4. His Honour's observations clearly demonstrate that he examined each of the documents for the purpose of determining whether the documents were in fact "counselling" records or whether they were departmental file records that contained within them material derived from documents that were protected confidences (termed by his Honour as "derivative" from original or source material).
I have concluded that, in the circumstances in which the claim for privilege proceeded before his Honour, it has not been demonstrated that there was a failure by him to make findings or disclose the reasoning process associated with the rulings made. His Honour was constrained by the provisions of the Act (s 299B(3)) not to disclose the contents of any documents containing counselling communications. That constraint limited him in providing reasons that would expressly or inferentially disclose information as to any counselling communications.
Subject to one matter referred to in the next paragraph below, I consider that the statements his Honour made by way of explanation in relation to each ruling were sufficient having regard to the circumstances and context in which the application was made.
The document at pages 74-77 are described at p 6 of the Schedule to Ms Ghazzaoui's affidavit under the sub-heading 'Nature and description of claim' as follows: "Created by Colin Foster, helpline caseworker. The information in this contact report comes from Anna Fidis and the document indicates that Anna Fidis is a "counsellor". The document on, page 3, indicates that the information within the contact reports comes from a counselling session…"
His Honour, in relation to the documents at pages 74-77 made the following ruling: "So far as the contact record at 74-77, there is reference in the submission to a person involved being a counsellor but notwithstanding the person being a counsellor or a wish that things be kept confidential, the matters must come within the ambit of the division. This, in fact, is a record of a third party contact. There is no counselling involved that I could ascertain. In the circumstances, it is not within the division and accordingly it is to be released." (Judgment, 20 May 2015 at p 21)
The ruling made in relation to these documents was that they were not protected by sexual assault communication privilege. His Honour's reasons record, inter alia: "There is no counselling involved that I could ascertain". That statement is accurate as to the communication as between the parties to the Contact Record (Colin Foster and Ms Fidis). However Ms Fidis, counsellor, is identified as the source of the information in the Contact Report and that information is identified as being derived from "a counselling session". In these circumstances I am of the opinion that the claim for privilege in relation to the document at pages 74-77 should be included in the documents his Honour reserved for further consideration (see para (3) in [110] above), and that the ruling made by his Honour in relation to them be reviewed in light of the above comments. I note that this Court has not had the benefit of seeing the documents. I acknowledge the possibility that there may be some material in them that supports his Honour's determination.
As it is not possible to reach any definitive conclusion as to whether there was any error in respect of the documents at pages 74-77, no basis has been established for the purposes of the leave to appeal application. The sole purpose of having addressed the issue in this judgment is limited to drawing attention to it for reconsideration by the District Court.
I have concluded that Ground 2 should be dismissed.
I have accordingly concluded that, for the reasons set out above, the application for leave to appeal should be dismissed and I would so order.
BUTTON J: I agree with Hall J.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 August 2015

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