Rohan v R [2018] NSWCCA 89

Rohan v R [2018] NSWCCA 89 · Read the judgment on AustLII

Catchwords: Sexual Assault Communications Privilege – Issuing subpoenas – substantial probative value

The Court of Criminal Appeal has considered the restrictions relating to issuing subpoenas in sexual assault proceedings. After observing that some previous authority might be questionable, they examined the intersection between ‘substantial probative value’ and the warnings juries receive in sexual assault proceedings.

The applicant was charged with sexual offences involving his niece. Before his Special Hearing, his lawyers sought leave to issue subpoenas to organisations for the production of documents which would have disclosed counselling the complainant received (‘protected confidences’). The provisions in the Criminal Procedure Act (‘the Act’) relating to Sexual Assault Communication Privilege (‘SACP’) provide, amongst other things, that leave is required before such a subpoena issues. Section 299B(4) of the Act allows a court to make orders facilitating its consideration of the material – otherwise, it is sometimes difficult to know in advance whether the material does actually contain protected confidences, or will be relevant to the proceedings. In the District Court the applicant’s lawyer invited the trial judge to use that section to compel production of the documents for the court to consider them, but her Honour found that s299B was irrelevant to her decision; rather her Honour limited her consideration to s299D, which sets out the criteria for granting leave. Her Honour duly refused leave to issue the subpoena, and the applicant lodged an interlocutory appeal.

Previous authority (KS v Veitch (No 2)(2012) 84 NSWLR 172) provided that, in deciding whether to grant leave to issue the subpoena, the powers under s299B included the power to compel an organisation to produce documents so that the court can consider them. R A Hulme J (with whom Hoeben CJ at CL agreed) had reservations about this proposition (at [60] – Walton J agreed with the overall outcome of the proceedings but did not share these reservations – at [4]). R A Hulme J observed that it is odd that a court can compel a person to produce a document, in order to determine whether a person ought to be compelled to produce the document (at [59]). However, the previous authority having not been challenged, the court followed it, found that it was a power that was available and relevant, and it was an error by the trial judge to exclude that provision from her consideration. However, that was not the end of the matter.

In determining the application for leave to issue a subpoena in an SACP matter a court is to consider s299D(1), which provides that each of three factors must be established before leave is granted (emphasis in original – at [76]). One of those factors is whether the document sought to be produced has substantial probative value (s299D(1)). The trial judge did not err in finding that the documents would not have substantial probative value. The argument at trial had been that the documents might show that the complainant had gone to counselling, but had not taken that opportunity to make a complaint. But s294 of the Act provides that if a suggestion is made that a complainant has failed to report, then a jury warning must issue to the effect that absence of complaint is not significant. Accordingly, even if the document showed a lack of complaint, it would have had no substantial probative value. It followed that the primary judge was correct to refuse to issue the subpoenas (at [87]-[90]).