R v Bonanno; ex parte Protected Confider

BATHURST CJ: I agree with the orders proposed by Adamson J and with her Honour’s reasons.

HOEBEN CJ at CL: I agree with Adamson J and the orders which she proposes.

ADAMSON J: On 1 June 2020, Syme DCJ purported to grant leave to the accused, Salvatore Bonanno, to issue a subpoena to a psychologist for the production of documents concerning counselling which the psychologist gave to the complainant (the protected confider). Her Honour also granted leave to the protected confider to access the documents once they had been produced to the Court. The accused stands charged with several counts of sexual offences against the protected confider. He is to be tried on indictment in the District Court.

By application filed on 4 June 2020, the protected confider sought leave, pursuant to s 5F of the Criminal Appeal Act 1912 (NSW) to appeal against her Honour’s orders made on 1 June 2020. In substance, the grounds of appeal were that her Honour had not complied with ss 299C or 299D of the Criminal Procedure Act 1986 (NSW) (the Act). Both the Crown and the accused accepted that the orders should not have been made and that leave to appeal ought be granted, the appeal allowed and the subpoena ought be set aside.

On 6 July 2020, this Court ordered:

My reasons for agreeing that the order ought be made, together with the consequential orders set out below, are as follows.

Division 2 of Part 5 of Chapter 6 of the Act makes provision for sexual assault communications privilege. A “protected confidence” is defined as meaning a counselling communication that is made by, relevantly, a victim of a sexual assault offence: s 296. Section 295 defines a protected confider as including, relevantly, the alleged victim of a sexual assault offence by whom a protected confidence was made. A victim of sexual assault cannot be compelled to identify a counsellor to whom a protected confidence has been made: s 298A.

A protected confider has standing in criminal proceedings if a document is sought to be produced or evidence is to be adduced that may disclose a protected confidence: s 299A.

The Court’s responsibility is expressly provided for in s 299, which provides:

Section 299C imposes a requirement that notice of application for leave be given before leave may be granted for a subpoena to be issued for documents which contain protected confidences. It relevantly provides:

Section 299D of the Act imposes a leave requirement before a subpoena is issued for a protected confidence. It relevantly provides:

It was common ground that the documents sought by the subpoena the subject of leave included documents recording protected confidences by the protected confider. It was also common ground that her Honour did not apply ss 299C or 299D at all. In so far as one can discern her Honour’s approach from the transcript, her Honour appeared to be under the mistaken apprehension that a subpoena could be issued without consideration of the matters provided for in the Act. This was erroneous. Her Honour was bound by the Act and failed to comply with it. For this reason, the subpoena was required to be set aside as it was unlawfully issued.

It is of utmost importance that courts acquaint themselves with relevant legislation and apply it. The range and number of pieces of legislation required to be applied in a criminal trial means that there is rarely a substitute for reviewing the actual terms of the legislation to see whether they apply in a particular case. Counsel plays a role in this process, too, and is obliged to point out to a judge the relevant legislation and how it ought be applied to the case in point. Non-compliance will result in an error of law and the potential invalidity of the juridical act, in this case the grant of leave to issue a subpoena and the subpoena itself. If left to go unchecked, errors of law can result in a mistrial of the accused and may cause substantial harm to others, including, in the present case, the protected confider.

Parliament has clearly expressed its intention in the provisions referred to above. In the Second Reading Speech (New South Wales Legislative Council, Parliamentary Debates (Hansard), 24 November 2010, at 28070-28072), the Hon. John Hatzistergos (then Attorney General) explained the policy reasons for the new provisions which were to be inserted into the Act by the Courts and Crimes Legislation Further Amendment Act 2010 (NSW):

The Court’s duty is to comply with the Act. Her Honour failed to do so in the present case.

For these reasons, I propose the following orders, in addition to order (1) setting aside the subpoena, which was made on 6 July 2020: