PPC v Stylianou

Court of Criminal Appeal (NSW)|2018-11-21|Before: Macfarlan JA, Rothman J, Hulme J, MacFarlan JA

C Smith SC / S Howell (Applicant) P Strickland SC / A Francis (Respondent) S Dowling SC / T McCarthy (Crown)

Solicitors: Sydney Criminal & Traffic Lawyers (Applicant) Nyman Gibson Miralis (Respondent) Director of Public Prosecutions (Crown) File Number(s): 2015/317860 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 31 October 2018 Before: Berman SC DCJ File Number(s): 2015/317860

Judgment

MACFARLAN JA: The respondent is to stand trial in the District Court on three charges of committing offences under s 66A of the Crimes Act 1900 (NSW) of engaging in sexual intercourse with a child (the "Principal Protected Confider" or "PPC") under the age of 10 years. In years subsequent to the alleged offences, the PPC consulted a number of psychologists about the conduct the subject of the offences.

SEXUAL ASSAULT COMMUNICATIONS PRIVILEGE - CP ACT CHAPTER 6, PART 5, DIVISION 2

Statutory provisions creating a privilege for sexual assault counselling communications were first introduced in New South Wales in 1997. They have been in Division 2 of Part 5 of Chapter 6 of the CP Act since 2010. So far as is presently relevant, the provisions are in the following terms: "Division 2 Sexual assault communications privilege 295 Interpretation (1) Definitions In this Division: criminal proceedings means: (a) proceedings relating to the trial or sentencing of a person for an offence (whether or not a sexual assault offence) including pre-trial and interlocutory proceedings but not preliminary criminal proceedings, or … principal protected confider means the victim or alleged victim of a sexual assault offence by, to or about whom a protected confidence is made. … 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. … 298 Protected confidences - criminal proceedings (1) Except with the leave of the court, a person cannot seek to compel (whether by subpoena or any other procedure) any other person to produce a document recording a protected confidence in, or in connection with, any criminal proceedings. (2) Except with the leave of the court, a document recording a protected confidence cannot be produced in, or in connection with, any criminal proceedings. (3) Except with the leave of the court, evidence cannot be adduced in any criminal proceedings if it would disclose a protected confidence or the contents of a document recording a protected confidence. … 299A Protected confider has standing 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. 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. … 299D Determining whether to grant leave (1) The court cannot grant an application for leave under this Division unless the court is satisfied that: (a) the document or evidence will, either by itself or having regard to other documents or evidence produced or adduced or to be produced or adduced by the party seeking to produce or adduce the document or evidence, have substantial probative value, and (b) other documents or evidence concerning the matters to which the protected confidence relates are not available, and (c) the public interest in preserving the confidentiality of protected confidences and protecting the principal protected confider from harm is substantially outweighed by the public interest in admitting into evidence information or the contents of a document of substantial probative value. (2) Without limiting the matters that the court may take into account for the purposes of determining the public interest in preserving the confidentiality of protected confidences and protecting the principal protected confider from harm, the court must take into account the following: (a) the need to encourage victims of sexual offences to seek counselling, (b) that the effectiveness of counselling is likely to be dependent on the maintenance of the confidentiality of the counselling relationship, (c) the public interest in ensuring that victims of sexual offences receive effective counselling, (d) that the disclosure of the protected confidence is likely to damage or undermine the relationship between the counsellor and the counselled person, (e) whether disclosure of the protected confidence is sought on the basis of a discriminatory belief or bias, (f) that the adducing of the evidence is likely to infringe a reasonable expectation of privacy. … 306 Application of common law (1) This Division does not affect the operation of a principle or rule of the common law in relation to evidence in criminal proceedings, except so far as this Division provides otherwise expressly or by necessary intendment. (2) Without limiting subsection (1), this Division does not affect the operation of such a principle or rule so far as it relates to the inspection of a document required to be produced in, or in connection with, criminal proceedings."

THE DISTRICT COURT JUDGMENTS

Yehia DCJ's judgment of 11 October 2018 dealt with a Notice of Motion that the respondent filed seeking leave pursuant to s 298(1) of the CP Act to issue subpoenas compelling a number of individuals and organisations to produce documents recording protected counselling confidences. Her Honour concluded that "the public interest in preserving the confidentiality of protected confidences and protecting the principal protected confider from harm is substantially outweighed by the public interest in compelling by subpoena the production of the documents" (Judgment [79]). Her Honour granted the leave sought. However, at the time that leave was granted, her Honour had evidence as to the circumstances in which the documents were created but did not have access to the documents themselves, as they had not then been produced.
After the documents were produced to the Court under the subpoenas issued pursuant to the leave that Yehia DCJ granted, the respondent sought from Berman DCJ an order granting him access to them. Apart from counsel for the PPC, no-one, including his Honour, had access to the documents for the purposes of the hearing of the application. (The access position remains the same pending the outcome of the leave application to this Court.)
On 31 October 2018, in his judgment, Berman DCJ noted that Yehia DCJ's decision came "at a very early stage", namely prior to the production of documents to the Court, as a result of which her Honour did not have the benefit of inspecting the documents. His Honour said that it seemed "a strange result" that, according to the respondent's submissions, his only function on the application before him was to consider the relatively straightforward question of whether disclosure of the documents was consistent with the leave that Yehia DCJ had granted. His Honour concluded however that that was the effect of the relevant statutory provisions, in particular s 299B(3) of the CP Act. Moreover, he found that "section 299D is irrelevant to the issue before me"; a conclusion that he described as "inconsistent with the object of the legislation but … consistent with the text of the legislation". He thus ordered that "any documents produced on subpoena are to be made available and disclosed to the parties if doing so is consistent with the terms of the order made by Judge Yehia when granting leave".

THE PARTIES' SUBMISSIONS ON THE LEAVE APPLICATION

On appeal, the PPC contended that before Berman DCJ made an order granting the respondent access to the subpoenaed documents (subject to that being consistent with the terms of Yehia DCJ's order), his Honour should have inspected each document and addressed the matters specified in s 299D(1) of the CP Act; in particular, whether, first, the documents had substantial probative value and, secondly, the public interest in preserving the confidentiality of the documents would be substantially outweighed by the public interest in admitting them, or information in them, into evidence. This would have required his Honour also to have regard to the matters of "public interest" identified in s 299D(2).
The PPC supported this contention by two alternative arguments. First, she contended that the effect of s 298(2) of the CP Act was that, even if leave had been granted under s 298(1) to subpoena the production of documents, a further grant of leave under s 298(2) was required to enable the issuer of that subpoena to have access to the documents produced under the subpoenas. In particular, she submitted that the word "produced", as it is used in s 298(2), incorporated the concept of "access" or alternatively should be read as meaning "production to the Court and production to the parties". She contended that the respondent's application for access was thus an application for leave under s 298(2) and was therefore "an application for leave under this Division" as referred to in the opening words of s 299D. She submitted that as a result s 299D(1) was applicable, requiring the matters referred to in s 299D(1) and (2) to be considered before access could be granted.
Secondly, and alternatively, the PPC contended, in effect, that the District Court's implied power entitled the Court, as a general proposition, to give or withhold access by parties to litigation before it to documents produced to the Court under subpoena. She submitted that s 299B of the CP Act did not mandate any different approach in the context of records of protected confidences, as the effect of that section was only to require satisfaction, before the grant of access to such documents, of one of the conditions specified in s 299B(3). She also submitted that s 299B did not preclude the Court taking into account other matters that it was required to take into account (being that referred to in s 299D(1) and (2) or that which it considered relevant to the exercise of its discretion to grant access to the documents). She submitted that s 299D was applicable because the access application was "an application for leave under this Division" within the meaning of that expression in s 299D(1).
On the other hand, the respondent submitted, as to the PPC's first argument, that s 298(2) was concerned not with the Court's power to grant access to the parties to documents produced to the Court on subpoena but with the production of documents to the Court by third parties. The respondent therefore submitted that the PPC's construction of the word "produced" was erroneous (see [9] above). As to the PPC's alternative argument, the respondent submitted that fulfilment of one of the conditions stated in s 299B(3) was both a necessary and sufficient pre-condition to the Court's grant to the respondent of leave to inspect subpoenaed documents, and that s 299B(3)(b) had been satisfied as Yehia DCJ had already granted leave under the Division, pursuant to s 298(1), and therefore s 299D had no application.

DETERMINATION OF THE MERITS OF THE LEAVE APPLICATION

The section 298(2) argument

In my view, s 298(2) of the CP Act, read in its context, refers, as does s 298(1), to production of a document to the Court. For the following reasons, I therefore reject the PPC's argument that the respondent's application for access to the documents produced to the Court under subpoena was an application for leave under s 298(2) and that, for that reason, s 299D(1) was applicable to the application.
Section 298(1) of the CP Act refers to a compulsory process ("whether by subpoena or any other procedure") which requires a person to "produce" a document. Subpoenas and other compulsory processes, such as notices to produce, ordinarily require production to the Court and not to the parties to the proceedings. Documents might however be produced to the Court otherwise than pursuant to a subpoena or notice to produce issued after the grant of leave. For example, documents might be produced to the Court pursuant to a subpoena issued without leave. Section 298(2) prohibits that occurring and ensures that the requirement for leave cannot be circumvented by that means.
Therefore, in my view, "produce" in subsection (1) refers to production to the Court. There is no reason why "produced" in subsection (2) should not be given a corresponding meaning. To do so gives both subsections a sensible operation and, if my view concerning the PPC's second argument is correct, the obvious legislative intent of ensuring that documents recording protected confidences are not disclosed to persons not party to the confidences without the Court considering the matters referred to in s 299D is not thwarted.
This conclusion conforms with the following observations of Basten JA (with whom Harrison and Beech-Jones JJ agreed) in KS v Veitch (No 2) (2012) 84 NSWLR 172; [2012] NSWCCA 266 at [23], a case in which documents were produced under a subpoena issued without leave: "The tripartite structure of s 298 appears to prohibit the issue of a subpoena, the production of a document and the adducing of evidence recording or revealing a protected confidence. Where leave is granted to issue a subpoena, it would make little sense to impose a subsequent leave requirement on production in answer to the subpoena. Subsection (2) should be understood to impose a constraint on the holder of a document recording a protected confidence from producing it otherwise than pursuant to a subpoena issued with leave. Although the prohibition in sub (1) bites at an early stage, its primary purpose is to prevent any person other than the persons who are party to the counselling communication having access to the contents of the document. Subsection (3) is engaged whenever a document is sought to be tendered or evidence falling within the prohibition is sought to be adduced from a witness" (emphasis added).
In that case, Beech-Jones J added at [88] that the issue of a subpoena without leave: "would not prevent the Court from then proceeding to consider the next step of whether leave should be granted to allow production of the document to a party involved under s 298(2)" (emphasis added). However, in NAR v PPC1 [2013] NSWCCA 25; (2013) 224 A Crim R 535 at [74], his Honour indicated that, on reflection, his reference in this passage should have been to production to the Court, rather than to a party.
In PPC v Williams [2013] NSWCCA 286; (2013) 238 A Crim R 25, Gleeson JA (with whom R A Hulme and Adamson JJ agreed) referred at [25], in passing, to the Court having power to allow access to subpoenaed documents under s 298(2). The observation was not material to the issues on the appeal as the source of the Court's power to grant or withhold access was not in issue. Moreover, his Honour expressly noted at [18] that neither party took issue with the Court's construction of s 298 (and other cognate sections) stated in KS v Veitch (No 2) and NAR v PPC1.

The PPC's second argument

The issue of subpoenas and the grant of access to subpoenaed documents in summary criminal proceedings are dealt with in ss 222 and 228 of the CP Act. Curiously, there are no corresponding statutory provisions in respect of indictable offences. In KS v Veitch [2012] NSWCCA 186 at [12]-[14], Basten JA (with whom Harrison and Beech-Jones JJ agreed) made the following observations concerning the source of the District Court's powers to issue subpoenas in indictable proceedings: "There was some uncertainty revealed in the submissions as to the provisions under which the subpoena was issued. Reference was made to Ch 4, Pt 3 of the Criminal Procedure Act (ss 220-232): however, that Part is said to apply only to proceedings before the Local Court or an Industrial Magistrate: s 170(2). Its application to the District Court in indictable proceedings, could only occur by way of regulation, made for the purposes of s 220. There is no provision in the Criminal Procedure Regulation 2010 (NSW) which has that effect. As a second possible source of power, the respondent suggested that a subpoena might be issued in a criminal matter pursuant to the 'general grant of criminal jurisdiction' in s 166 of the District Court Act 1973 (NSW). However, that section provides that the District Court has criminal jurisdiction conferred upon it by statute and 'generally' has the same criminal jurisdiction as Courts of Quarter Sessions. It does not in terms confer powers necessary or appropriate to the exercise of that jurisdiction. Thirdly, the respondent submitted that the power to issue a subpoena was conferred by the District Court Rules 1973, Pt 53, made pursuant to s 171(2)(b) of the District Court Act. Part 53, Div 2, deals with subpoenas (rr 18-25). Although certain rules operate by reference to provisions of the Criminal Procedure Act, Ch 4, Pt 3, the rules are not so limited. Accordingly, it should be accepted that the power of a Registrar of the District Court to issue a subpoena in relation to a criminal trial, subject to any statutory constraints, is conferred by Pt 53, Div 2 of the District Court Rules."
There can be no doubt about the existence of the District Court's power, not only to issue a subpoena, but also to grant or withhold access to documents produced on subpoena to the Court. As Pt 53 of the District Court Rules 1973 (NSW), to which Basten JA referred in KS v Veitch, does not contain reference to such a power (although, as his Honour pointed out it does to the issue of subpoenas), the power must in my view be sourced in the District Court's implied powers to do what is necessary to enable it to act effectively within its jurisdiction (see Bogeta Pty Ltd v Wales [1977] 1 NSWLR 139 at 148-149).
The Court's control over access to subpoenaed documents has long been recognised as a necessary part of litigation procedure, both civil and criminal. As stated in National Employers' Mutual General Insurance Association Ltd v Waind [1978] 1 NSWLR 372 at 383, "the exercise of the power of the judge to permit inspection" of subpoenaed documents is the second step in the process by which litigants obtained documentary evidence from third parties. Moreover, s 306(2) of the CP Act expressly preserves common law principles relating to the inspection of documents subpoenaed in connection with criminal proceedings (see [4] above).
It is clear that s 299B(3) circumscribes the Court's power to grant access to documents recording protected confidences: the Court may not grant such access "unless" one of the conditions stated in that subsection is satisfied. The subsection does not however state, either expressly or impliedly, that the documents must be made available to the parties if one of those stated conditions is satisfied. Instead, it simply assumes the existence of a power of the Court to grant or withhold access and engrafts a stricture on the exercise of that power. Contrary to the respondent's submission, fulfilment of one of the alternative conditions in s 299B(3) is a necessary, but not a sufficient requirement, for entitlement to an order for access.
To accept a contrary view would be to leave a significant gap in the protection afforded by the CP Act to the disclosure of documents recording counselling confidences. Ordinarily, as in the present case, the Court would grant leave to issue subpoenas for the production of such documents without it having the opportunity to inspect the documents. On the respondent's argument, a determination that granting access to the documents when produced would be consistent with the grant of that leave would, without more, require, in nearly every case, that access to the documents be given to the other parties to the proceedings. On that argument, the Court would not need to be satisfied of the matters specified in s 299D, or of any other matters that the Court would ordinarily take into account before granting access to subpoenaed documents. As Berman DCJ said, that result would be "inconsistent with the object of the legislation". That object is reflected in the following passage from the Second Reading Speech made in respect of the 2010 Amendment to Division 2 (Courts and Crimes Legislation Further Amendment Act 2010 (NSW)): "The privilege is not just designed to prevent the unnecessary adduction of evidence of protected confidences before a jury, but is designed to prevent the inappropriate subpoena of such confidences in the first place, and then the inappropriate granting of access to them." Unlike his Honour, I do not consider that the text of the legislation requires that result: as I have said, there is nothing in s 299B(3), or elsewhere, to indicate that compliance with that subsection is a sufficient, as well as a necessary, condition to entitle parties to an order granting them access to protected counselling documents. As a result, depending on the particular circumstances of the case, including the nature of any submissions of the PPC, the Court may have to examine some or all of the subpoenaed documents to enable it to determine whether access to them should be granted to the accused in criminal proceedings.
Subject to the question of standing to seek leave to appeal, to which I now turn, the PPC is therefore entitled to succeed.

STANDING TO SEEK LEAVE TO APPEAL

The PPC contends that she is given standing to seek leave to appeal either by s 5F(3AA) or s 5F(3) of the Criminal Appeal Act 1912 (NSW) ("CA Act"). Section 5F is relevantly in the following terms: "5F Appeal against interlocutory judgment or order (1) This section applies to: (a) proceedings (including committal proceedings) for the prosecution of offenders on indictment in the Supreme Court or in the District Court, and … (2) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in proceedings to which this section applies. (3) Any other party to proceedings to which this section applies may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in the proceedings: (a) if the Court of Criminal Appeal gives leave to appeal, or (b) if the judge or magistrate of the court of trial certifies that the judgment or order is a proper one for determination on appeal. (3AA) A person who is not a party to proceedings to which this section applies may appeal to the Court of Criminal Appeal against a decision in those proceedings to grant leave under Division 2 of Part 5 of Chapter 6 of the Criminal Procedure Act 1986 or a determination in those proceedings that a document or evidence does not contain a protected confidence within the meaning of that Division, if the person is: (a) a person who, because of the leave, is required to produce a document or adduce evidence that contains a protected confidence, or (b) a protected confider in relation to a protected confidence that may be produced or adduced because of the leave, or (c) a person who claims the document or evidence does, despite the determination, contain a protected confidence in relation to which the person is a protected confider. (3AB) An appeal under subsection (3AA) may be made whether or not an appeal has been made by a party to the proceedings, but only if: (a) the Court of Criminal Appeal gives leave to appeal, or (b) the judge or magistrate of the court of trial certifies that the decision is a proper one for determination on appeal. (3A) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any decision or ruling on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution's case. (4) An appeal under this section shall, unless the Court of Criminal Appeal gives leave to adduce fresh, additional or substituted evidence, be determined on the evidence (if any) given in the proceedings to which the appeal relates. (5) The Court of Criminal Appeal: (a) may affirm or vacate the judgment, order, decision or ruling appealed against, and (b) if it vacates the judgment, order, decision or ruling, may give or make some other judgment, order, decision or ruling instead of the judgment, order, decision or ruling appealed against."
Section 5F(3AA) and (3AB) of the CA Act confer on "[a] person who is not a party to proceedings to which this section applies" a right to seek leave to appeal. In light of, particularly, paras (a), (b) and (c) of subsection (3AA), it is clear that a person who claims to be a Principal Protected Confider, such as the present PPC, is a "person who is not a party" within the meaning of s 5F(3AA).
The right to seek leave is to appeal against, relevantly for present purposes, a decision "to grant leave under Division 2 of Part 5 of Chapter 6 of the Criminal Procedure Act 1986". The decision presently sought to be appealed against was one to allow access to subpoenaed documents. As I have said earlier, the power to grant access is not expressly conferred by the relevant statutory provisions in Division 2. Instead, its source is in the implied powers of the District Court. The power is however assumed and constrained by s 299B of the CP Act in the manner that I have described in [21] above. It is also preserved by s 306.
The nature of the matters to which s 299D(1) and (2) of the CP Act refer is such that it would be expected that they would be considered when the Court inspected the subpoenaed documents. As I noted above, that could not ordinarily occur at the time leave was granted to issue the subpoenas. A, and perhaps the, principal occasion when that should logically occur is when the Court considers whether to allow the prosecution and accused to have access to the documents. The opening words of s 299D(1) ("an application for leave under this Division") should accordingly be understood as embracing an application for access to protected confidence documents produced on subpoena. As the legislative provisions are beneficial, they should be construed broadly in this way.
In these circumstances, I consider that Berman DCJ's decision concerned an application for a grant of leave under Division 2 and that the PPC therefore has standing conferred by s 5F(3AA) of the CA Act.
For the following reasons, I consider that the PCC also has standing under the other provision that she relied upon, namely s 5F(3).
The respondent accepted that, subject to an argument that the PPC's application was premature, Berman DCJ's order was a "judgment or order" within the meaning of the subsection and that it was "interlocutory". He contended however that the PPC was not a "party to proceedings to which this section applies" within the meaning of the subsection.
That argument is however in my view determined against the respondent by this Court's decision in Tran v R [2017] NSWCCA 93 at [16], in which I said (Schmidt J agreeing) the following in relation to the word "party" when used in s 5F(3): "There is no good reason to adopt a narrow definition of the word 'party', which would deprive some persons who are directly affected by orders made below of a right to challenge them. To the contrary, one would expect all such persons to have such a right."
After considering the relevant authorities, I concluded at [20]-[21] as follows: "These authorities justify the conclusion that a person who participates in a hearing (for example, one to determine an objection under s 18 of the Evidence Act), in a manner analogous to that of a formally recorded party (for example, by leading evidence or making submissions) is a 'party' for the purposes of an appeal provision such as s 5F(3) of the Criminal Appeal Act if the person is directly affected by orders made as a consequence of the hearing. This conclusion is appropriate even if the person is not formally recorded as a party. In some cases the conclusion that a person has a right to seek leave to appeal can alternatively be reached by treating the word 'party' as embracing a person who is formally recorded as a party, albeit only in relation to a limited part of the proceedings. Examples of persons in this category are defendants to cross-claims who are not otherwise parties to the proceedings, and respondents to notices of motion who are not otherwise parties to the proceedings. The status of such persons as 'parties' is however qualified so as to limit their rights and obligations arising from that characterisation to the part of the proceedings in which they were recorded as parties. Likewise, persons who are parties only because of their participation in a limited part of the proceedings could not claim rights, or be subject to obligations, not referable to the part of the proceedings in which they participated."
On this basis, the PPC was a "party" to the proceedings below because she participated in a relevant hearing of those proceedings, albeit a hearing limited to the issue of access to subpoenaed documents. Moreover, she was a "party" on the second basis to which I referred in Tran v R, namely, that she was formally recorded as a party, she being a respondent to the present respondent's Notice of Motion seeking access to the subpoenaed documents.
The respondent submitted that s 5F(1)(a) (see [24] above) indicated that a "party" within the meaning of s 5F(3) must be either the prosecutor or accused in "proceedings for the prosecution of offenders on indictment". Such proceedings however frequently involve interlocutory applications to which third persons are parties. In including "pre-trial and interlocutory proceedings" within the definition of "criminal proceedings", s 295(1) of the CP Act (see [4] above) in my view reflects the ordinary meaning of that expression, which conforms with that of the similar expression used in s 5F(1)(a). The fact that the principal parties to criminal proceedings are the prosecutor and the accused does not preclude other persons being parties to the proceedings for limited purposes where they take part in them, for example in connection with subpoena issues.
In the present case, as in Tran v R, it was argued that the terms of s 5F(3AA) indicated that a narrower meaning should be given to the word "party" in s 5F(3). I repeat what I said in that case at [23]-[24] (again with the concurrence of Schmidt J) in response to that argument: "… In my view the legislature's insertion into s 5F, by way of amendment in 2010, of a subsection in these terms does not indicate that a narrow meaning should be given to the word 'party' in other subsections such as s 5F(3). The Crown's argument to the contrary was to the effect that s 5F(3AA) implied that a person aggrieved by a decision on the issue with which that subsection is concerned would not otherwise have a right to appeal or seek leave to appeal against it because the word 'party' in other subsections had a limited meaning. However the insertion of the subsection was consistent with a legislative intent to remove doubt about such a person's rights. It did not change what was otherwise the meaning of the word 'party' where used elsewhere in the section. The authorities cited in D C Pearce and R S Geddes, Statutory Interpretation in Australia, (8th ed, 2014) at [3.35] do not identify any principle of statutory construction which would require a contrary conclusion."
It is apparent from these observations that s 5F(3AA) was enacted in 2010, long after s 5F was inserted into the CA Act. As the Crown submitted in the present case, it cannot be inferred that the insertion into the CA Act of provisions conferring additional rights was intended to narrow those that were already conferred by the Act. There is nothing in the text of the legislation, or in extrinsic material, that would suggest that that was intended.
Finally, the respondent submitted that the PPC's application was premature because Berman DCJ did not actually grant leave to the respondent to inspect the subject documents. However, as indicated earlier, Berman DCJ did make an access order: that the documents "be made available and disclosed to the parties if doing so is consistent with the terms of the order made by Judge Yehia when granting leave". The condition embodied in this order did not deprive it of the character of an order capable of being the subject of a grant of leave to appeal. It appears that, if the order stands, its condition will be readily satisfied, in particular, without the District Court addressing the important issues to which s 299D refers. The order is therefore undoubtedly adverse to the interests of the PPC.

ORDERS

For the reasons that I have given, the PPC has standing to seek leave to appeal against Berman DCJ's order of 31 October 2018. In my view, leave to appeal should be granted and the appeal allowed.
I propose the following orders: 1. Grant leave to the applicant to appeal against the order of Berman DCJ made on 31 October 2018. 2. Allow the appeal. 3. Set aside that order. 4. Remit the proceedings to the District Court to be dealt with according to law.
ROTHMAN J: I have had the advantage of reading the draft Reasons for Judgment of Macfarlan JA, with which I fully agree. I also agree with the orders proposed.
I wish to make some further comments, which are not intended to detract in any way from the reasons of Macfarlan JA, but, rather, to express my complete agreement with his Honour's analysis. The facts and legislation need not be repeated.
In the decision below, Berman SC DCJ expressed the view that the result of the respondent's submissions, if implemented, was "strange". I agree with that comment. Yet, Berman SC DCJ felt he had no other alternative.

Sexual Assault Communication Privilege

In construing the CP Act, the Court is mandated to examine the terms of the whole Act and provide a construction that achieves the purpose evident from those terms. Further, the Court must seek a construction that achieves harmonious goals: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28.
The manifest purpose of the provision is the protection of the relevant confidential communications and the performance of the balancing exercise required by s 299B and s 299D of the CP Act. Yet the respondent's submissions on the effect of those provisions would result, at least in most cases, in the Court never assessing the criteria in s 299D of the CP Act.
Such a result is inconsistent with the purpose of the legislation and inconsistent with the achievement of harmonious goals. The absurd result for which the respondent contends arises because of a misconstruction of the term "consistent with that leave" in s 299B(3)(b) of the CP Act.
The leave granted by Yehia SC DCJ was leave under s 298(1) of the CP Act to compel production, meaning, in this context, the issuing of a subpoena. At the time that production is due (and usually on notice prior thereto) the protected confider may object to the production to the court under s 299A of the CP Act. The court must then assess the production in light of the criteria prescribed in s 299B and s 299D of the CP Act.
The leave granted by a court for the issue of a subpoena, or other compulsory process, without an examination of each document and an assessment of the criteria in s 299D of the CP Act, is not leave by which that court is bound in determining an objection to production. Nor is the order to produce, or order for access, "consistent" with the leave to issue a subpoena that has occurred without an examination of each document.
The relevant terms of s 299B(3)(b) of the CP Act refer to "making available or disclosing". The grant of leave under s 298(1) is, usually, if not universally, not concerned with the issue of either the documents' availability or disclosure to anybody other than the relevant court.
I agree with the analysis of Macfarlan JA.

Power of the District Court

I reiterate my agreement with Macfarlan JA on this issue also and add the following comments.
Every court, whether or not a court of record or a superior court of record, has such implied power as is necessary in the fulfilment of its jurisdiction. Such an implied power arises, subject to any negation by an express term or words of necessary intendment, from the conferral of jurisdiction and provides the power to do that which is necessary for its exercise: Grassby v The Queen (1989) 168 CLR 1 at 16-17; [1989] HCA 45 (per Dawson J).
In that respect, the term "necessary" means that which is "reasonably required or legally ancillary to the accomplishment of the specific remedies" for which the court has jurisdiction: Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19 at [51] per Gaudron, Gummow and Callinan JJ.
The implied powers of the District Court include the power to grant or deny access to documents produced.

The Right to Appeal

Again, I agree with the analysis on this issue of Macfarlan JA. The first aspect to which I would add is whether the decision of Berman SC DCJ is an order.
A refusal of an order is usually, if not always, itself, an order or judgment. Thus, the refusal of adjournment is an order or judgment. The grant or refusal of an application for a judge to be disqualified from further hearing a proceeding is a judgment or order and, obviously, an interlocutory order is an order or judgment: Haset Sali v SPC Ltd (1993) 67 ALJR 841; [1993] HCA 47; Onslow v Commissioner of Inland Revenue (No 2) (1890) 25 QBD 465; The Corporation of Peterborough v Overseers of the Parish of Wilsthorpe (1883) 12 QBD 1; Maxwell v Keun [1928] 1 KB 645; Re Ludeke; Ex parte Customs Officers' Association of Australia, Fourth Division (1985) 155 CLR 513 at 526; [1985] HCA 31; Gas & Fuel Corporation Superannuation Fund v Saunders (1994) 52 FCR 48; Brooks v The Upjohn Company (1998) 85 FCR 469.
In Gas & Fuel Corporation Superannuation Fund v Saunders, supra, the Full Court of the Federal Court of Australia (per Gummow and Heerey JJ, with whom Davies J agreed in a separate judgment) said at 64: "… [T]he orders pronounced by his Honour … were orders which were (subject of course to obtaining leave) properly the subject of an appeal. They were in the nature of procedural directions and thus interlocutory, but orders nonetheless. The practical and legal effect of what his Honour did was, to use his Honour's words, to 'order a new trial by another judge of the Court'. Judges of this Court, as a matter of routine, give directions (which are a species of order) that cases be placed in a list for trial, or that a trial commence on a specified date or that a trial date already fixed be vacated. For example, an order of a judge directing that a matter be fixed for trial after rejecting a party's contention that it was not ready could be the subject of appeal."
A direction that documents be produced or that access be given to documents produced is an order and, subject to the CA Act, may be the subject of appeal. Further, the order is interlocutory in nature.
The next issue is the nature of proceedings arising from the compelling of a person to produce documents to the court. The reasons of Macfarlan JA refer to the express provisions relating to civil proceedings: see also Uniform Civil Procedure Rules 2005 (NSW) "UCPR" r 33.4.
The express provisions in the UCPR were inserted in order to overcome the obvious anomaly that a recipient of a subpoena would have the power to seek to set aside the subpoena, but a party to the substantive proceedings may not: Wran v Australian Broadcasting Commission [1984] 3 NSWLR 241 at 264.F - 265.B and 269.C - 270.A, per Hunt J (as he then was). In that case the Australian Broadcasting Commission (the "ABC") was held to have no standing to set aside a subpoena issued to the Archives Authority, which was holding documents produced by the ABC to the Royal Commission.
The UCPR were amended to provide expressly for a party to the substantive proceedings to set aside a subpoena to which it was not party. The result as to standing in Wran v Australian Broadcasting Commission, supra, arises from the application of the reasoning in National Employers' Mutual General Insurance Association Ltd v Waind [1978] 1 NSWLR 372 ("Waind & Hill"), to which Macfarlan JA has referred: see at Waind & Hill at 385 - 386.
The underlying principle to the three-stage process, to which the Court referred in Waind & Hill, is the nature of the interlocutory process arising from the issue of compulsory process for attendance and production. It originated with the King's Council (curia regis) and was adopted by the Courts of Chancery. Disobedience could (and still may) be punished with imprisonment.
Essentially, the subpoena was a separate order of the court directed to the addressees requiring attendance: see Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 573 per Jordan CJ; Ditford v Calcraft (1989) 98 FLR 158 at 159 - 160, per Kirby P. The essence of the process was a separate proceeding to which the parties were the applicant for the subpoena and the addressee who was "sub poena" (under punishment) for non-compliance.
Thus, the Court of Appeal in Waind & Hill (supra) came to the conclusion that a party to the substantive proceeding may not, as of right, be a party to, or object to, a subpoena not addressed to it or taken out by it. As a consequence, the parties to a motion for the setting aside of a subpoena are parties to an interlocutory process and not necessarily the parties to the substantive proceeding.
In my view, apart from the analysis of Macfarlan JA, with which I agree, the foregoing informs the question of the right of appeal. An addressee of a summons or subpoena is a party to the interlocutory proceeding by which that party is required to attend or to produce documents.
The addressee of a subpoena is, on the foregoing analysis, a "party to proceedings to which this section applies" and has a right of appeal under s 5F(3) of the CA Act. The "proceedings to which this section applies" are "proceedings for the prosecution of offenders on indictment": s 5F(1) of the CA Act.
The privilege or protection for communication by victims of sexual assault and the victim's counsellor was part of a suite of legislation that included the promulgation in 2003 of Division 2 of Part 5 of Chapter 6 of the CP Act. Those provisions define, for those purposes, "criminal proceedings" to include "interlocutory proceedings".
When s 5F(3AA) of the CA Act was inserted, the provisions (and the definition) in s 295 of the CP Act already operated. The provisions of s 5F of the CA Act and Division 2 of Part 5 of Chapter 6 of the CP Act are in pari materia. The term "criminal proceedings" should be understood to include "interlocutory proceedings" within trials for indictable offences. Were it not so, subsections 5F(2) and 5F(3) would have no work to do. This is because the appeal against interlocutory judgment applies only to judgments "in the proceedings".
As a consequence, the criminal proceedings include interlocutory proceedings within the trial and, in particular, subpoena proceedings. The PPC is a party to that interlocutory proceeding.
As is obvious, a subpoena for production of a confidential communication may be addressed to any person who may have possession of it, or a copy of it. As a consequence, s 5F(3AA) of the CA Act provides additional standing to a PPC (and others) to appeal such a decision.
I reiterate, once more, my agreement with the analysis and conclusion on this and all issues of Macfarlan JA and provide the foregoing as additional comments only.
R A HULME J: I agree with Macfarlan JA.

Amendments 20 December 2018 - [30]: Quoting s 5F(3) of the CA Act "to" added before "which". 21 December 2018 - [51: Changed "power as is necessary in the fulfilment of its implied jurisdiction" to "implied power as is necessary in the fulfilment of its jurisdiction", and changed 18 to 16-17 in the CLR citation. [56]: Changed "Per" to "per". [66] and [67]: After "Part 5 of" added "Chapter 6 of". 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: 21 December 2018

Courts and Crimes Legislation Further Amendment Act 2010(NSW)

Criminal Procedure Regulation 2010(NSW)

(Courts and Crimes Legislation Further Amendment Act 2010(NSW)

At a glance

Court

Decision date

Before

Source

Judgment (15 paragraphs)

Parties

Legislation Cited (9)

Cases Cited (19)

Cited By (2)