C, Re v O, Cl - [2014] SASC 83

SUPREME COURT OF SOUTH AUSTRALIA
(Appeals to a Single Judge)
C, RE v O, CL
[2014] SASC 83
Judgment of The Honourable Justice Bampton
27 June 2014
PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - PRODUCTION AND INSPECTION - GROUNDS FOR RESISTING PRODUCTION - PUBLIC INTEREST IMMUNITY
Appeal from refusal of a District Court Judge to release a party from the implied undertaking to use documents disclosed in civil proceedings only for the purposes of those proceedings – notes of psychologist disclosed by respondent which appellant seeks to use in criminal proceedings – issue of whether Division 9-Protected Communications Evidence Act 1929 (the Act) applies to the psychologist’s notes – s 67E and s 67F should have been complied with in the civil proceedings.
Held: to release the applicant from the implied undertaking to allow him to use knowledge of the contents of the psychologist’s notes in the criminal proceedings would subvert the operation of and policy underpinning Division 9 of the Act – appeal refused.
Evidence Act 1929 (SA) s 4, Div 9, s 67E, s 67E(1), s 67E(2)(b), s 67E(3), s 67F, s 67F(1)(c), s 67F(2)(a), s 67F(2)(b); District Court Civil Rules 2006 (SA) r 160, referred to.
Question of Law Reserved (No 1 of 2000) (2000) 77 SASR 344; R v R, GJ (2009) 105 SASR 506; R v Basha (1989) 39 A Crim R 337, considered.

C, RE v O, CL
[2014] SASC 83
Civil: Appeal to a Single Judge

BAMPTON J: This is an appeal against the refusal of a District Court Judge to release the appellant from the implied undertaking to use certain documents disclosed by the respondent in a District Court action (the civil proceedings) only for the purposes of those proceedings.
In these reasons I shall refer to the appellant (who is the defendant in the civil proceedings) as C and the respondent (who is the plaintiff) as O.
As the subject matter of this appeal concerns the application of Division 9—Protected Communications of the Evidence Act 1929 (SA) (the Act), I ordered that the hearing of the appeal be in closed court and that the transcript of the proceedings be placed in an envelope and sealed marked only to be opened by a Judge of the Supreme Court.
Background
On 15 March 2012, C was convicted following a trial of persistent sexual exploitation of a child committed against O. On 7 August 2012, C was sentenced to 12 years’ imprisonment with a non-parole period of six years. During sentencing submissions a Victim Impact Statement of O was read to the Court. In that statement O made reference to having undergone psychological treatment.
On 29 November 2012, O commenced District Court proceedings seeking damages for the injuries she suffered as a result of the sexual offending committed against her by C. A defence was filed on 22 May 2013.
In February 2013, C’s solicitors wrote to O’s solicitors making reference to the Victim Impact Statement that had alerted C’s solicitors to the fact that O had seen a psychologist and making a request for disclosure of all medical and psychology case notes or records pertaining to O.
O’s solicitors then sought and obtained a report from the psychologist, Deborah Lawton. Ms Lawton, who had not previously been consulted by O, prepared her report dated 3 September 2013 following an interview with O on 31 July 2013. Ms Lawton refers in her report to O’s solicitors providing her with the following:
·Victim Impact Statement of O;
·Police Statement of O;
·District Court judgment; and
·Progress notes of O’s treating psychologist, Lina Sohner, dated 11 June 2009 to 26 July 2011 (the Sohner notes).
In response to the following questions asked by O’s solicitor:
Prior to the offending by [C], did our client suffer from any psychological or psychiatric condition? If so, did the offending commencing in about 1992 aggravate or contribute to her condition?
and:
Our client has instructed us that she was also sexually abused by [others]. Can you please give your opinion on what impact that offending had on our client?
Ms Lawton discussed in her report allegations made by O that she was also sexually abused by [others].
Pursuant to rule 160, O’s solicitor, under cover of a letter dated 25 September 2013 addressed to C’s solicitor, served copies of the Lawton report and the Sohner notes (the Documents).
As C’s solicitor was on leave until 21 October 2013, the letter was not seen by her until 21 October 2013. Upon her return, the solicitor forwarded the Documents to C without reading them, Having done so, the solicitor then read the Documents and became aware that they contained information regarding other alleged sexual abusers which neither C nor his legal representatives had been aware of at the time of his criminal trial.
Consequently the solicitor received instructions from C to file proceedings in the Supreme Court for an extension of time within which to appeal and an application for permission to appeal against his conviction. Those proceedings are part heard before Parker J.
The interlocutory application FDN 16
C’s solicitor thereafter sought counsel’s opinion and issued the application (FDN 16) seeking an order that C be released from the implied undertaking not to use the Documents to the extent that he be permitted to use them for the following purposes:
·Making application for the issue of subpoenas directed to Ms Lawton and Ms Sohner and “other relevant persons referred to in the Documents” to produce their records.
·By tendering them in support of his application for an extension of time within which to appeal and for leave to appeal against his conviction.
·If his application for an extension of time should succeed, by tendering them in support of an application for leave to appeal against his conviction.
·If his application for an extension of time and for leave to appeal should succeed, by tendering them on his appeal against his conviction.
·To investigate any other lines of inquiry in relation to the defendant to exercise his rights of appeal against his conviction.
Interlocutory application FDN 16 was heard by Judge Brebner on 27 November 2013. It was not until O’s counsel commenced his submissions that the issue of public interest immunity prescribed by s 67E was raised. O conceded that the report of the psychologist, Deborah Lawton, does not attract the public interest immunity because it was brought into existence for the purpose of O’s claim for damages pursuant s 67E(2)(b). However, O submitted that the Sohner notes were created in a therapeutic context and, as such, are protected communications by virtue of s 67E.
Judge Brebner, having heard argument, ordered:
1.That the implied undertaking identified by Mr Abbott in his outline of argument can properly be relaxed to the extent and to the extent only that the defendant in these proceedings may apply to the Supreme Court for leave to issue and serve subpoenas for the production to the Supreme Court of the documents marked SLA6 exhibited to the affidavit of Susan Lempriere-Abbott dated the 5^th day of November 2013.
2.Insofar as it may be necessary, I release the defendant from the implied undertaking to the extent identified and to that extent only.
The criminal appeal
Justice Parker has given C permission to issue subpoenas for documents directed to various individuals and entities, including Ms Lawton and the holder of the Sohner notes Adelaide Western General Practice Network.
Justice Parker has also given permission to the prosecution and C to inspect and photocopy documents returned on subpoena which are not potentially subject to s 67 and has adjourned hearing submissions regarding the application of s 67E to 27 June 2014.
Application FDN 20
On 17 March 2014, C issued a second interlocutory application (FDN 20) in the civil proceedings seeking an order that he be released from any implied obligation which may attach to the use of the information contained in the Documents. C also sought that he be entitled to use the information:
1.In support of his arguments that documents produced pursuant to subpoenas which have been issued by the Supreme Court in action [number]:
1.1. are not immune from production and/or inspection as protected communication within s 67E of the Evidence Act.
1.2. further alternatively should be received into evidence pursuant to s 67F of the Act.
2.Subject to the application of s 67E and s 67F of the Act in support of his application for leave to appeal against conviction.
On 18 March 2014, Judge Brebner refused the application stating:
In my view, if I were to grant the application I would be acting contrary to the policy considerations underpinning s 67E and F of the Evidence Act 1929. The application is refused.
C filed a notice of appeal on 3 April 2014. The matter came on for hearing before me on 16 June 2014.
C contends that the Sohner notes are not protected communications. However, it is appropriate that I proceed on the assumption that the Sohner notes are protected communications until a Judge considering the application of Division 9 of the Act decides they are not.
C seeks the order releasing him from the implied undertaking so that he can apply for permission to inspect the Sohner notes before the argument regarding the application of Division 9 of the Act before Parker J. C contends that granting the release will permit the use of knowledge of the contents of the Sohner notes in making submissions without risking contempt of Court. C contends that, having read the Sohner notes, the defendant “cannot un-know what he knows”.
Analysis
Division 9 establishes a scheme for the protection of confidentiality of communications of counselling a sexual offence victim. Section 67E(1) provides that a communication relating to a victim or alleged victim of a sexual offence is, if made in a therapeutic context, protected from disclosure in legal proceedings by public interest immunity. Evidence of protected communications is only admissible in legal proceedings, other than committal proceedings, if the Court gives permission to adduce the evidence pursuant to s 67F(2).
Section 4 of the Act defines “legal proceeding” or “proceedings” to include:
any action, trial, enquiry, cause or matter, whether civil or criminal, in which evidence is or may be given and includes an arbitration.
Section 67E(3) provides that the public interest immunity arising under s 67E cannot be waived by a counsellor, therapist or a party to the protected communications, or the victim or alleged victim of a sexual offence. The Sohner notes were provided to Ms Lawton and disclosed to C in inadvertent breach of s 67E.
The Lawton report as a communication made for the purposes of legal proceedings would appear to be exempt from the immunity pursuant to s 67E(2)(b). Whilst it is not for me to decide, issues may arise whether:
·the exemption applies to any parts of the Lawton report based on information gleaned from the Sohner notes.
·a report prepared by Ms Sohner based on her clinical notes (the protected communications) for the purpose of the civil proceedings would be exempt from the immunity pursuant to s 67E(2)(b).
If an alleged victim of sexual abuse discloses during the course of civil proceedings that he or she has consulted a counsellor or therapist, the fact of the consultation does not attract the s 67E public interest immunity. It is the communication with a counsellor or therapist in a therapeutic context as defined in s 67D that is the protected communication.
Evidence of protected communications are exempt from disclosure or any other form of pre-trial disclosure pursuant to s 67F(1)(c). In Question of Law Reserved (No 1 of 2000), Lander J (with whom Nyland J agreed) said:[1]
The scheme of the legislation is reasonably clear. First, the legislation deems protected communications to be privileged. It makes privileged communications which are not recognised by the common law as being privileged. That privilege is not capable of being waived by the victim or the alleged victims or by the counsellor or therapist or by a party to the protected communication. It protects the communications from disclosure in legal proceedings by public interest immunity.
[1] (2000) 77 SASR 344, [62].
Significantly, Lander J concluded that any inspection of the protected communications by counsel for a defendant for the purpose of deciding whether to make an application to adduce the evidence per s 67F(2) would be contrary to the clear purpose of the legislation. Lander J also concluded that a party who has custody of protected communication is not liable to produce the communication in answer to subpoena.
In R v R, GJ,[2] Kourakis J (as he then was) said:[3]
… having regard to the statutory purpose of Div 9 of the Evidence Act 1929, there is no sensible reason why the prohibition against disclosure should operate differently depending on whether a subpoena is made returnable on a day before the trial commences or on a day during the course of the trial. I would construe the phrase “discovery or other pre-trial disclosure” in s 67F to mean any disclosure, other than by way of the examination or cross-examination of witnesses, or the tender of some other evidence, in the trial. That construction allows the provisions of the Division to operate coherently; protected communications are not discoverable other than to the extent that their contents are disclosed through evidence that is adduced with the permission of the trial Judge. Were it otherwise, protected communications could be sought without any limitation, other than the common law discretions, by way of subpoena or Basha enquiry[4] after the trial had commenced.
The power of a trial Judge is limited by s 67F to granting permission to adduce evidence and, for the purpose of exercising that discretion, undertaking a preliminary examination of the relevant evidence. The power of the Judge to undertake a preliminary examination of the relevant evidence is conditioned by s 67F(2) on the satisfaction of the Judge that the applicant has a legitimate forensic purpose for seeking permission to adduce the evidence and that there is an arguable case that the evidence would materially assist the applicant. The term “adduce” in the context of curial proceedings refers to the leading of evidence and not to the processes of discovery.
(Emphasis in original)
[2] (2009) 105 SASR 506.
[3] (2009) 105 SASR 506, [17]-[18].
[4] R v Basha (1989) 39 A Crim R 337.
On the assumed basis that the Documents are the subject of public interest immunity under s 67E, an order releasing C from the implied undertaking and permitting C to use the Documents in the criminal appeal proceedings would be inappropriate as the Court would be sanctioning a past breach and a future breach of Division 9 contrary to the scheme of Division 9 of the Act.
The question of the application of Division 9 of the Act to the Sohner notes is now properly before Parker J in the criminal appellate proceedings.
The Sohner notes, if determined in the criminal appellate proceedings to be protected communications, can only be admitted if the Court gives leave to adduce the evidence after being satisfied of the threshold matters prescribed by s 67F(2)(a) and (b) that:
·C has a legitimate forensic purpose for seeking to adduce the evidence; and
·there is an arguable case that the evidence would materially assist C in the presentation or furtherance of his case.
To grant a release from the undertaking to permit C to make reference to the contents of the Sohner notes in the criminal proceedings would be to subvert the operation of and policy underpinning Division 9 of the Act.
The District Court Judge was not in error. The appeal is dismissed.