JK v R

1. [1]

   THE COURT: The applicant, JK, seeks leave to appeal pursuant to s 5F of the Criminal Appeal Act 1912 (NSW) against an interlocutory judgment or order of Musgrave DCJ at Orange District Court on 18 February 2025. The effect of the judgment was to refuse the applicant leave to have access to documents which had been produced to the Court in response to a subpoena. Objection had been taken by the complainant/protected confider to the applicant having access to those documents on the basis of a claim of sexual assault communication privilege.

2. [2]

   There is no issue that Judge Musgrave’s decision was an interlocutory one in the criminal proceedings against the applicant or that the protected confider has standing to participate in this application.

3. [3]

   The applicant, JK, is due to stand trial in the District Court at Orange on 31 March 2025 on an indictment which contains five counts alleging sexual offences against one complainant, who is the applicant’s former wife. Count 1 in the indictment alleges one offence of sexual intercourse without consent, having occurred in November 1994. The second count alleges sexual intercourse without consent, having occurred in June 1997, and counts 3 to 5 allege offences which are said to have occurred on the one occasion on 29 June 2019. Count 3 alleges sexual intercourse without consent by digital vaginal penetration. Count 4 charges sexual intercourse without consent, alleged to be penile vaginal penetration. Count 5 charges sexual touching without consent, the alleged act being that the applicant/accused used his hand to put ejaculate from his penis into the complainant’s mouth.

4. [4]

   The Crown Case Statement indicates that the Crown will also seek to adduce a significant quantity of “context” evidence about alleged sexual assaults by the accused against the complainant during the course of their relationship.

5. [5]

   In written submissions by counsel for the accused to Judge Musgrave on the application for access to the documents, counsel stated “The critical issue in the trial will be the complainant’s credibility and reliability.” The purpose for which access was sought to the documents produced was in relation to what the accused’s counsel described as the “evolution” of the complainant’s account of the events in Dubbo.

6. [6]

   There was no concession by the complainant of having made a false allegation against the accused.

7. [7]

   The complainant has made a number of statements to police. The first was dated 24 June 1997. That statement contained accounts of the alleged 1994 and 1997 sexual assaults which are the subject of counts 1 and 2 on the indictment. On 30 June 1997 the complainant signed a second statement in which she retracted her first statement and told police she did not wish to proceed with the matter further or attend court.

8. [8]

   The complainant made statements dated 9 December 2020, 18 March 2021, 2 March 2022 and 5 August 2024.

9. [9]

   In the December 2020 statement the complainant described the conduct said to have occurred in a motel in Dubbo in June 2019. The complainant said she was in a bath in the motel, the accused got into the bath with her and tried to put his fingers inside her vagina, then when she got out of the bath the applicant had masturbated while sitting on the bed and used his hand to wipe ejaculate from his penis in her mouth.

10. [10]

    In the March 2021 statement the complainant again described those two events in the motel in Dubbo in June 2019.

11. [11]

    In the March 2022 statement the complainant gave an account of the incident in the motel in Dubbo in June 2019 in which she said that the accused put his fingers inside her vagina, then he put his penis in her vagina while she slipped under the water level in the bath and the accused had his hands around her neck, applying pressure to her throat with his thumbs. She said she fought the accused off and screamed at him to get out and he got out of the bath and left the bathroom. She then referred to the act of the accused wiping ejaculate inside her mouth. It appears that that statement was the first in which the allegation of penile vaginal sexual intercourse, which is the subject of count 4 on the indictment, had been described in a statement by the complainant.

12. [12]

    In a recorded interview with a police officer on 2 November 2020, in which the complainant made a complaint of harassment from the accused by way of phone calls, text messages and voicemail messages, the complainant was asked by the police officer if the accused had previously assaulted or threatened her. In response, she described physical violence, interfering with her emotions, psychological abuse, and said “There was a sexual assault going back to 97.” She did not refer to any other sexual assaults.

13. [13]

    By subpoena to the New South Wales police, the accused’s legal representatives obtained an email dated 20 May 2021 from the complainant to the Officer in Charge, in which the complainant said “… the one from 2019 at the motel in the bathtub in Dubbo. That assault also needs more information put to it as I have remembered more of what happened during therapy and writing my book”.

14. [14]

    In her statement of 5 August 2024 the complainant said that in August 2020 she had begun keeping a diary in the notes on her phone. She then said she began to see a psychologist in Bathurst and went to appointments about once a month, about 15 times. She said:

15. [15]

    On 3 December 2024 counsel for the accused sought leave to issue a subpoena, pursuant to s 298 of the Criminal Procedure Act 1986 (NSW) (“the Act”). Counsel conceded that the records sought from the psychology practice attended by the complainant would likely contain protected confidences. Usually such an application for leave requires the court from which leave is sought to undertake the process in s 299D of the Act, to which I will refer shortly. In Judge Musgrave’s judgment of 18 February 2025 her Honour noted that:

16. [16]

    The accused sought leave to access the documents produced in response to the subpoena, on the basis that given the late disclosure of the alleged assault the subject of count 4 and the complainant’s email to the effect that she had remembered more about that incident during therapy, the accused sought to ascertain whether, and if so how, the counselling process had contributed to the complainant’s remembering and disclosing that alleged assault.

17. [17]

    The application by the accused was heard by Judge Musgrave on 18 February 2025. The accused was represented by counsel, the Crown by a trial advocate and the complainant/protected confider by a solicitor who is very experienced in such applications, and in particular appearing for protected confiders. The protected confider, through her solicitor, presented a confidential affidavit in support of her position. During the hearing her Honour, with the agreement of the protected confider’s solicitor, disclosed parts of the protected confider’s affidavit by reading it onto the record, having taken the view that those parts did not contain privileged communications. That part of the affidavit disclosed indicated the name of the counsellor seen by the complainant, that she understood the counselling sessions would be confidential and that she was told a form of therapy titled “EMDR” would not be used.

18. [18]

    The accused’s proposed enquiry of the psychology practice documents had two limbs, firstly to ascertain whether the EMDR form of therapy had been used, and secondly, the content of the counselling notes. During the hearing, the Crown offered, with the consent of the complainant/protected confider, to obtain a statement from the counsellor about the form(s) of therapy used with the complainant.

19. [19]

    On the date of the hearing of this application that statement had been obtained and was received by this Court with the agreement of all parties, as it may assist the Court in its task. The statement set out the techniques of psychological therapy used, stated that EMDR was not used, and listed the dates of appointments and other contact between the complainant and counsellor.

Relevant statutory provisions

1. [20]

   The statutory provisions in relation to sexual assault communications privilege are contained in Div 2, Pt 5 of Ch 6 of the Act. They concern protected confidences. A “protected confidence” is defined as a “counselling communication that is made by, to or about a victim or alleged victim of a sexual assault offence”: s 296(1). A “counselling communication” means a communication made in confidence by a counselled person to a counsellor who is counselling the person in relation to any harm the person may have suffered, or made in confidence to or about the counselled person by the counsellor in the course of that counselling, or made in confidence about the counselled person by a counsellor or other people who have roles in the counselling process, pursuant to s 296(4). A document containing a protected confidence cannot be required to be produced for inspection by another party unless the requirements of s 299D are satisfied.

2. [21]

   Section 298 of the Act provides:

3. [22]

   Section 299B provides for the court to consider documents in certain circumstances:

4. [23]

   Section 299D provides the test to be met for a court to grant leave for documents to be produced:

5. [24]

   In KS v Veitch (No 2) (2012) 84 NSWLR 172; [2012] NSWCCA 266 and Rohan v R [2018] NSWCCA 89 this Court said that s 299B provides a discretion for a judge determining a question arising under the Division to consider the documents in question. In PPC v Williams (2013) 238 A Crim R 25; [2013] NSWCCA 286 Gleeson JA, RA Hulme and Adamson JJ agreeing, confirmed that the judge must determine, in respect of each document to which access is sought, whether it has substantial probative value. It is difficult to envisage how a judge can decide whether a document to which access is sought contains a protected confidence, or has substantial probative value, and to decide the matters required to be determined by s 299D, if the judge does not examine the documents.

6. [25]

   It appears from the transcript of the hearing before Judge Musgrave and her Honour’s judgment that her Honour did not examine the documents which had been produced to the Court in response to the subpoena issued. There is no indication in the hearing transcript between her Honour hearing submissions on the application and delivering her judgment, that her Honour adjourned to consider the documents.

Judge Musgrave’s judgment

1. [26]

   Her Honour noted at the beginning of her judgment that the parties’ position was that the hearing of the claim for privilege would be “assisted by the production of documents and potentially an examination by the Court of them in order for the claim to be determined”. (Emphasis added.)

2. [27]

   Her Honour said that the documents had been produced and access given to the solicitor representing the protected confider, who had examined them and pressed the claim for sexual assault communication privilege over all the documents other than two, to which no objection was taken to access being provided to the parties. (Emphasis added.)

3. [28]

   Her Honour noted that the claim was pressed on the basis of a confidential affidavit from the protected confider, the first four paragraphs of which had been placed on the record.

4. [29]

   Her Honour noted that the basis of the accused’s application were the changes to the complainant’s versions and that the jury’s assessment of the complainant’s credibility and reliability would be a central issue in the trial, and that evidence of the circumstances and manner of therapy in which “significant memories were recovered” by the complainant would affect the jury’s assessment because of the evolution of the versions provided by the complainant to police in her statements.

5. [30]

   Her Honour referred to the two categories of material sought by the accused, being the form of counselling and the substance of the communications. Her Honour referred to the confidential paragraphs remaining in the affidavit from the complainant and said she was satisfied that the disclosure of the communications would have an impact on the complainant, would affect the counselling relationship, and that the complainant entered into counselling on the basis the discussions were confidential and would otherwise not have done so. Her Honour accepted that the documents were clearly counselling communications and enlivened the sexual assault communication privilege provisions.

6. [31]

   Her Honour referred to counsel for the accused’s submission that the material had significant probative value and there was a public interest in the disclosure of it. Her Honour referred to counsel’s reliance on the “evolution” of the complainant’s statements and the different versions, coinciding with the times in which she was receiving counselling, and that counsel for the accused said the “evolution” of the statements was of significant probative value.

7. [32]

   In respect of the “evolution of the statements” her Honour noted that the evolution and their linkage to counselling was outlined in the complainant’s statements to the extent that she was prepared to disclose it, and that she would be available for cross-examination in the trial.

8. [33]

   Her Honour declined to grant leave for the parties’ legal practitioners only to have access to the documents, as not appropriate when a claim for sexual assault communication privilege had been made.

9. [34]

   Her Honour said:

Proposed ground of appeal

1. [35]

   The applicant seeks leave to appeal on the following ground:

The applicant’s submissions

1. [36]

   The applicant submits that Judge Musgrave failed to apply the statutory principles to the facts, that her Honour did not determine the probative value of the documents to which access was sought, and did not undertake the weighing exercise in s 299D(1)(c), because her Honour did not assess the probative value of the documents. Counsel submitted that her Honour focussed too much on the harm to the protected confider and the counselling relationship if the documents were disclosed and did not focus on or assess the probative value of the documents.

2. [37]

   He submitted that the manner of questioning and the number and timing of the counselling sessions relative to when the complainant made statements was linked to the recovery of memories by the complainant.

3. [38]

   The applicant submitted that leave to appeal should be granted because the appeal demonstrates an error of principle which carries with it the possibility or likelihood of substantial injustice: Koschier v R (2024) 113 NSWLR 491; [2024] NSWCCA 24 (“Koschier”) at [43] – [45].

Submissions of the protected confider

1. [39]

   The protected confider opposed leave to appeal being granted to the applicant, relying on the statements of Bell CJ in Koschier about this Court exercising restraint in granting leave to determine interlocutory disputes in criminal matters, to limit interference with interlocutory orders of judges at first instance: at [44] – [46].

2. [40]

   Counsel for the protected confider submitted that the primary judge made the correct decision that the documents did not have substantial probative value. Counsel accepted that if Judge Musgrave did not examine the documents that affected her Honour’s decision. He submitted the documents do not have probative value.

3. [41]

   The parties did not know if her Honour examined the documents.

The Crown’s submissions

1. [42]

   The Crown made submissions to assist the Court, including in relation to the standard of appellate review in this application.

2. [43]

   The Crown submitted that, following the High Court’s decision in Steven Moore (a pseudonym) v The King [2024] HCA 30; (2024) 419 ALR 169 (“Moore”), and having regard to the evaluative decision required or empowered by s 299D, the correctness standard applies.

3. [44]

   The protected confider also advocated that standard, following Koschier.

4. [45]

   The applicant agreed that the correctness standard applies. Having originally sought that the matter be remitted to the District Court for determination, the applicant agreed that this Court should determine the question of the accused’s access to the documents.

5. [46]

   Counsel for the applicant suggested an alternative option for this Court of granting access to the documents to legal representatives only, as likely to cause lesser harm to the protected confider and the counselling relationship. He highlighted that the counsellor’s statement revealed that the counselling relationship had finished in 2022.

Standard of review

1. [47]

   The High Court’s statements in Moore at [13] – [15] and that s 299D seems to require and empower a judge to grant leave or not grant leave in accordance with the section, lead us to conclude that the “correctness standard” applies to this application for leave to appeal.

2. [48]

   The High Court said that “Under the correctness standard, the appellate court determines for itself the correct outcome while making due allowance for such ‘advantages’ as may have been enjoyed by the trial judge who conducted the trial or hearing”: at [14].

Consideration

1. [49]

   Applying the test reaffirmed in Koschier, the matter raised in this application for leave to appeal is “not one that may properly be left to consideration on appeal after trial if a conviction results”: Koschier at [45].

2. [50]

   Although Judge Musgrave referred to the test in s 299D(1) of the Act, her Honour did not properly apply that test. Her Honour had regard to a confidential affidavit from the protected confider, in relation to the harm which the protected confider would suffer if the confidential protected confidences were disclosed. That was one of the issues which her Honour had to weigh pursuant to s 299D(1)(c) of the Act.

3. [51]

   Her Honour referred to submissions by counsel for the accused as to why the counselling documents sought had significant probative value, those reasons being the “evolution” of the complainant’s statements and her reliability and credibility being central to the jury’s determination of the issues in the trial. Those submissions were made by counsel, obviously, without knowledge of what was contained in the documents, to which he had not had access. Her Honour appears to have decided the issue of whether the documents to which access was sought had substantial probative value on the basis of the submissions made to her. We have concluded that her Honour did not examine the documents, on the basis of the hearing transcript and her Honour’s judgment. Examining the documents with knowledge of the issues in the trial was the only way in which her Honour could determine whether the documents had probative value, and “substantial probative value”. Therefore, her Honour did not properly satisfy herself of the matters in s 299D(1)(a) - (c). Her Honour did not comply with the statutory test in refusing the application before her.

4. [52]

   That was an error of principle which has the possibility or likelihood of causing substantial injustice to the accused in his forthcoming trial, if the documents, or any of them, have substantial probative value in relation to the issues in the trial. That is a matter which cannot properly be left to consideration on appeal after the trial if a conviction results.

5. [53]

   The documents produced in response to the subpoena were provided to this Court. In compliance with the correctness standard we examined the documents to determine the applicant’s application for leave to access the documents produced on subpoena.

6. [54]

   The documents contain protected confidences. The documents do not have any probative value in relation to the identified issues in the trial of the complainant’s credibility and reliability and the “evolution” of her complaint. As none of the documents have substantial probative value in the accused’s trial, there is no need for the Court to engage in the weighing of the matters in s 299D(1)(c). There being no documents having substantial probative value, this Court cannot grant leave to the accused to have access to the documents produced in response to the subpoena issued on his behalf.

Orders

1. [55]

   Therefore we propose the following orders:

   1. (1)

      Grant the applicant leave to appeal against the order of Judge Musgrave of 18 February 2025 refusing the applicant leave to access documents produced under subpoena.

   2. (2)

      Dismiss the appeal.