Director of Public Prosecutions v Ballard (a pseudonym)
[2021] VCC 363
•31 March 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GREGORY BALLARD (a pseudonym) |
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JUDGE: | HER HONOUR JUDGE TODD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 March 2020 | |
DATE OF RULING: | 31 March 2020 | |
CASE MAY BE CITED AS: | DPP v Ballard (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 363 | |
REASONS FOR RULING
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Subject:CRIMINAL LAW
Catchwords: Protected evidence – confidential communication – victims to report sexual assault – delay in complaint - vulnerable complainants
Legislation Cited: Evidence (Miscellaneous Provisions)Act 1958
Cases Cited:Nicholls v R (2005) 219 CLR 196.
Ruling:Application Granted
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Briana Goding | Gabriella Mazzone |
For the Applicant For CASA | Eleanor Millar Deborah Foy | Clare Moss Andrew Gill |
HER HONOUR:
Background
1The accused Gregory Ballard[1] is charged with 12 offences: six charges of sexual penetration of a child under 16 and six charges of sexual assault of a child under 16. (There are effectively six charges before the jury each charge has an alternate).
[1] A pseudonym.
2The offending is said to have occurred between 4 April 2016 and 30 June 2017.
3The complainant, who for the purposes of these reasons I will refer to as BY, was aged between seven and nine at the time of the alleged offending. He is now 11 years old. In earlier times he was said to have a mild intellectual disability, however more recently obtained materials suggest this is not the case.
4The accused was the complainant’s foster carer at the time of the alleged offending; he gave a lengthy record of interview to police in which he denied any sexual misconduct in relation to the complainant.
5By notice dated 18 November 2020 the accused applied for leave to issue a subpoena for the production of ‘protected evidence’ as defined in the Evidence (Miscellaneous Provisions)Act 1958. (‘the Act’) .
6The accused sought leave to issue a subpoena to the Ballarat Centre Against Sexual Assault (‘BCASA’) created during counselling with BY, specifically, notes of:
othe alleged sexual offending against the protected confider by Gregory Ballard (the Accused) between 4 April 2016 and 25 May 2018;
oany allegations of sexual offending against, or sexually inappropriate behaviour towards, the protected confider by any other person which occurred on or before 25 May 2018; and
oany sexually inappropriate behaviour perpetrated, or alleged to have been perpetrated, by the protected confider against any person on or before 25 May 2018.
7To advance the application, the accused makes the following arguments addressing the matters the Court must consider pursuant to section 32D of the Act:
othe complainant is the sole witness to the alleged offending (and therefore his credibility is a central issue at trial);
othe complainant attended counselling through BCASA throughout the time he was in the care of the accused (and I note this time was co-extant with the dates of the alleged offending);
othe complainant was seeing BCASA throughout this period because of other incidents unrelated to the accused;
othis also occurs in the context of the complainant being removed from his parents’ care when amongst other things, his sister had made a complaint that her step father (the complainant’s father) sexually abused her;
othe complainant’s older brother has also claimed to have been sexually assaulted by the father;
othe complainant did not complain about the accused until 5 September 2018, more than four months after he left the care of the accused;
oas well as being under the care of BCASA during his time of residence with the accused, the complainant was also a client of Berry Street child protection service.
8The accused argues that if he is denied access to the records sought he would not be able to fully test the reliability and credibility of the complainant’s evidence.
9Section 32C of the Act establishes the general proposition that confidential communications (defined in section 32B of the Act, and about which there is no controversy in this case) cannot be produced or adduced unless the court grants leave to do so.
10The accused gave notice and on 11 December 2020 the application was commenced and the matters in section 32D, which governs the restrictions on granting leave, were canvassed.
11Section 32D reads:
(1)A court must not grant leave to compel the production of, to produce or to adduce protected evidence unless it is satisfied, on the balance of probabilities, that—
(a)the evidence will, either by itself or having regard to other evidence produced or adduced or to be produced or adduced by the
party seeking leave, have substantial probative value to a fact in issue; and
(b)other evidence of similar or greater probative value concerning the matters to which the protected evidence relates is not available; and
(c)the public interest in preserving the confidentiality of confidential communications and protecting a protected confider from harm is substantially outweighed by the public interest in admitting, into evidence, evidence of substantial probative value.
(2)Without limiting the matters that the court may take into account for the purposes of subsection (1)(c), the court must take into account—
(a)the likelihood, and the nature or extent, of harm that would be caused to the protected confider if the protected evidence is produced or adduced;
(b)the extent to which the protected evidence is necessary to allow the accused to make a full defence;
(c)the need to encourage victims of sexual offences to seek counselling and the extent to which victims may be discouraged to do so, or the extent to which the effectiveness of counselling may be diminished, if the protected evidence were produced or adduced;
(d)whether the party seeking to compel the production of or to produce or adduce the protected evidence is doing so on the basis of a discriminatory belief or bias;
(e) whether the protected confider objects to the disclosure of the protected evidence;
(f)the nature and extent of the reasonable expectation of confidentiality and the potential prejudice to the privacy of any person.
(3)A court may grant leave to compel the production of, or to produce or adduce, part of—
(a)a confidential communication; or
(b)the contents of a document recording a confidential communication—
and, if so, that part of the document may be made available, or that part of its contents disclosed, in any manner that the court thinks fit to the party seeking to compel its production or to produce or adduce it in evidence.
(4)The court must state its reasons for giving or refusing to give leave under this section.
(5)If leave is refused under this section, that fact must not be referred to in the presence of the jury, if any.
12At the hearing on 11 December 2020, Ms Millar, for the applicant, submitted that the jury in this case would ask themselves two questions:
(a) why would BY make up these allegations?; and
(b) how would a child of BY’s age know about the types of sexual behaviour he describes if these events did not happen?
13Ms Miller submitted that there may be other contexts that are the source of BY’s knowledge.
14Ms Foy, who was briefed to appear for BCASA, opposed the application. Through her, BCASA advised that there were no notes in the BCASA materials that fell into any of the three categories of information sought by the accused. BCASA filed an affidavit of Ms Gunn dated 10 December 2020, the contents of which was relied upon to oppose the grant of leave. Ms Gunn is a qualified social worker and has been a counsellor at BCASA since July 1997. She gives evidence of the limitations of the notes made by counsellors in that context. Her affidavit deposes as to the risks that BY’s ability to trust adults may suffer further, if he became aware that his private information was to be disclosed. Further, Ms Gunn states that the release of this information may impact upon BY’s willingness and capacity to trust others, particularly his counsellors. Moreover, Ms Gunn deposes that, in her opinion, the willingness and confidence of victims to report sexual assault would be further jeopardised if they became aware that counselling notes could be made available in this way.
15At the hearing on 11 December 2020, and now aware that the counselling notes sought did not contain any reference to many of the matters the subject of the original draft subpoena, the terms of the draft subpoena were narrowed and pursuant to section 32C (6) the Court ordered the limited production to the Court in order to determine the application. The narrowed subpoena read:
Notes made by any counsellor, and any practical materials used (e.g.
drawings, workbooks etc.), at the Ballarat Centre Against Sexual
Assault (CASA) during counselling with [Name Removed],[Date of Birth Removed]
(the protected confider) in relation to:
• Any sexual behaviour exhibited by the protected confider.
16A heavily edited set of counselling notes, ten pages in length, were subsequently provided to the Court pursuant to this process.
17Further, at that time, the accused was also in the process of issuing subpoenae for non-confidential communications from other institutions being the Ballarat specialist school, Berry Street child protection agency and the Department of Human Services, Child Protection Division.
18The case was adjourned for the purposes of those ‘non-confidential’ subpoenae being served and answered such that the parties could be properly apprised of the full context of the application for the confidential communications. This was necessary in the light of 32D(1)(b) which requires the court to consider whether there is other evidence of similar or greater probative value concerning the matters to which the protected evidence relates.
19On 1 February 2021 the court convened for the purposes of the release of the materials that had been produced to the court in relation to the other non-confidential subpoenae. That material was voluminous. It ran to approximately 6000 pages. The Court adjourned further to enable the applicant to consider those materials and whether to persist with the application, and if so, how to address the matters in 32D(1)(b) going to the availability of other evidence.
20After that hearing, and before the hearing on 31 March 2021, the Court received submissions both from the applicant and from counsel appearing to the Director of Public Prosecutions.
21In his submissions dated 30 March 2021, the accused concedes that materials in the nonconfidential subpoenae do in fact support the proposition that BY engaged in sexually inappropriate behaviour prior to being placed in the care of the accused (and therefore, I assume, that there are other sources of sexual vocabulary and knowledge in BY’s background). Moreover, those materials also disclose that BY was potentially exposed to inappropriate sexual behaviour by one or more of his siblings while in foster care, and by other children in care that he resided with. The accused concedes that those materials also disclose bases upon which the accused might impugn BY’s credibility. Notwithstanding this, the accused persisted with his application on the expectation that BY’s BCASA counselling would likely contain, in essence, records of the exploration of the causes for BY’s sexualised behaviour. In essence, the accused persisted with his application on the basis that those materials he would be unable to make a full defence in the absence of that protected evidence.
22Between these hearings, the BCASA records were produced to the court to assist the analysis. They are heavily edited consistent with the narrowed subject of the subpoena being limited to notes of ’any sexual behaviour exhibited by the protected confider.’ What remains is a tiny fraction of the materials held by BCASA.
23I must now determine pursuant to the criteria in s 32D of the Act whether leave is to be granted in the terms sought.
24The edited notes are 10 pages in length. But the page numbering suggests the original document is at least 42 pages long, and is probably longer. The first date on them is 23 October 2014. The most recent date is 8 May 2018. They are therefore created before, and continue after, the alleged offence period.
25I will now consider the matters in section 32D. In doing so, I have had regard to the guiding principles in section 32AB of the Act.
32D(1)(a) ‘ the evidence will either by itself or having regard to other evidence have substantial probative value to a fact in issue’
26The issue at trial will be whether these events occurred; in Nicholls v R, Justice McHugh said:
[A]t least in relation to sexual offences cases, issues about credit (for example,
evidence showing a disposition on the part of the complainant to make orsupport false complaints) ultimately go to whether or not the offence was committed.[2][2](2005) 219 CLR 196 at [52]
27This is a somewhat unusual case, in that the complainant was at the very time of the alleged offending, in the care of expert sexual offence counsellors. It is no doubt relevant to the credit of the complainant, that even though he was in long-term and expert sexual offence counselling he did not disclose any such events to his treating counsellors. The jury will also be instructed in the usual way about “delay in complaint” .
28The absence of complaint to these counsellors does not require the material to be released. The accused is now in a position to go to the jury on that point. However, even in very limited parts of the counselling notes that have been disclosed to the court, I am satisfied that parts of those matters will have substantial relevance to a fact in issue, being whether these events occurred at all.
32D (1) (b) other evidence concerning these matters not available
29Sadly, there has been a vast amount of material generated in relation to the complainant BY. Some 6000 pages have been obtained already under subpoenae for non-confidential communications. While parts of that material are relevant to the matters originally sought in this application, I am not satisfied that the matters in the BCASA materials have been canvassed in the other documentation.
32D (1)(c) the public interest in preserving the confidentiality substantially outweighed by public interest in admitting the evidence; and
·32D (2)(a) the likelihood of harm that would be caused to the protected person;
·32D (2)(c) the need to encourage victims of sexual offences to seek counselling;
·32D (2)(e) the nature and extent of the reasonable expectation of confidentiality and the potential prejudice to the privacy of any person.
30I will deal with these four restraints on release compendiously.
31I have considered the public interest in preserving the confidentiality of BY and other complainants in his position. It is of course important that the confidence of vulnerable complainants such as BY is maintained. Tragically, much has been written about BY in his short life. As I have already noted, over 6000 pages of records of his foster placements and education have already been obtained under non-confidential subpoenae; these were properly issued and answered. This application must be viewed in this context. Sadly, BY has little privacy on account of his care being administered by institutions of the state. I consider the harm of the release of these materials in that context. I must also consider the likelihood that such release may deter BY, or victims of sexual offending from seeking counselling. First, I note that only tiny fragments of the records of this counselling have been revealed to the court and are the subject of this decision. The notes of counselling have overwhelmingly, in terms of volume, remained confidential. In all the circumstances, I find that while there may be some harm done to the confidence in confidentiality, but that this has been substantially mitigated.
32I have considered the potential prejudice to the privacy of other people. There is one fellow student named in the materials and this will be removed prior to the documents’ release.
32D (2)(b) the extent to which the protected evidence is necessary to allow the user to make full defence.
33I have concluded that the protected evidence is necessary for the accused to make a full defence; there will be materials in these documents that corroborate statements made by the accused his record of interview, and go to other issues at trial.
34I have taken into account the matters raised on behalf of BY, in that he through his carers, objects to the release of this information.
35I note for completeness that there is no suggestion that this application is underpinned by discriminatory belief or bias.
36I therefore order that the edited BCASA notes will be produced to the accused. I note that any application to adduce that material at trial will need to be made before the trial judge. Further, I will direct that the dates in the document relating to each part of the edited notes be released to the accused. This is necessary to allow a proper understanding of how the notes relate to the charge period.
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