Director of Public Prosecutions v Franklin (No 2)

[2023] ACTSC 452

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Franklin (No 2)

Citation:

[2023] ACTSC 452

Hearing Date:

30 January 2023, 22 February 2023

DecisionDate:

15 March 2023

Before:

Baker J

Decision:

See [23]

Catchwords:

CRIMINAL LAW – application for disclosure of protected confidences – evidence that complainant previously made false allegations of sexual assault – evidence of complainant’s mental health and consumption of alcohol at time of previous alleged false complaint – disclosure necessary for accused to have a fair trial – leave granted to disclose documents

Legislation Cited:

Court Procedures Rules 2006 (ACT), r 6609(12)

Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 79A, 79G, 79H, 79I,

Cases Cited:

DPP v Franklin (No 1) [2023] ACTSC 451

Harman v Secretary of State for the Home Department [1983] 1 AC 280

Parties:

ACT Director of Public Prosecutions (ACT DPP)

Patrick Thomas Franklin (Accused)

Representation:

Counsel

Mr D Swan (ACT DPP)

Mr K Ginges ( Accused)

Solicitors

ACT Director of Public Prosecutions (ACT DPP)

Hugo Law Group ( Accused)

File Number:

SCC 214 of 2022

BAKER J:

1. The history to the present application is set out in DPP v Franklin (No 1) [2023] ACTSC 451.

1. In that judgment, I granted the applicant leave under the Evidence (Miscellaneous Provisions) Act 1991 (“the Act”) to issue a subpoena to the ACT Mental Health, Justice Health and Alcohol and Drug Service (“the ACT MHJHADS”) to provide the following documents:

1.Any Documents relating to [redacted] between 1 July 2013 to present. relating to or referring to [redacted]’s mental health conditions, complaints, diagnoses or disorders, and to any records relating to [redacted]’s alcohol or drug use.

2.“Documents” whether made or maintained in hard-copy or electronic format, includes but is not limited to:

a.       Records;

b.       Admission and discharge papers;

c.       Correspondence;

d.       Nursing notes and doctors’ notes;

e.       Mental health history;

f.        Medication/prescription records;

g.       Reports (including medical and third/party reports);

h.       Mental health assessments;

i.        Counsellor, psychologist and/or psychiatrist reports and notes;

j.        Diagnoses and other observations;

k.       Treatment plans;

l.        Any other notes and memoranda. 

1. The subpoena was issued on 30 January 2023.

1. Documents were produced by the ACT MHJHADS in compliance with the subpoena on 20 February 2023. At a mention of the proceedings on 22 February 2023, I indicated to the parties that I proposed to conduct a preliminary examination of the documents produced by the ACT MHJHADS under s 79G of the Act. Both parties agreed with this proposed course.

1. On the basis of that preliminary examination, I provided the parties with a schedule of the documents that had been produced by the ACT MHJHADS that were capable of falling within the definition of “protected confidence” under s 79A of the Act (“the previous schedule”).

1. Unfortunately, as a result of an administrative oversight, my preliminary examination was conducted on documents produced by the ACT MHJHADS in response to an earlier, broader, subpoena which was no longer pressed by the applicant (see Franklin (No 1) at [14]).

1. When this became apparent, I then conducted a preliminary examination of the documents produced under the 30 January 2023 subpoena. I again provided the parties with a schedule of the documents produced under that subpoena that I considered to be capable of falling within the definition of “protected confidence” under s 79A of the Act (“the new schedule”). The majority of the documents listed in the new schedule were also listed on the previous schedule. The new schedule, with corresponding references to the documents identified in the previous schedule, is annexed to this judgment (“Annexure A”).

1. There are two documents that were on the previous schedule that do not appear to have been produced in answer to the 30 January 2023 subpoena. Those documents appear to fall within the scope of the 30 January 2023 subpoena, and it is not clear why those documents were not produced by the ACT MHJHADS.

1. Mr Ginges, who appears for the applicant, suggested that I could make an order under s 79G(4) of the Act to require the ACT MHJHADS to explain why the two documents were not produced in answer to the 30 January 2023 subpoena. However, as that process would necessarily delay access to the documents that have now been produced, Mr Ginges ultimately took the position that the Court should proceed to make a determination under s 79D, and that he could decide whether to take further action in respect of the two unproduced documents at a later time.

10. I am satisfied that the documents produced in response to the subpoena listed in Annexure A to this judgment are capable of falling with the definition of a “protected confidence” within s 79A of the Act. In so concluding, I have adopted a generous approach to the classification of these documents. It could be argued that some of the documents included in Annexure A are not strictly “counselling communications” within the meaning of s 79A(3) of the Act. However, for the reasons outlined below, I propose to grant leave for the disclosure of each of these documents to the parties. In these circumstances, the conservative approach that I have taken to the assessment of whether the documents are protected confidences will not result in any prejudice to the applicant.

11. Section 79H(1) of the Act provides that the Court may give leave for a protected confidence to be disclosed in a criminal proceeding “only if” the Court is satisfied that “the public interest in ensuring an accused person in the proceeding is given a fair trial outweighs the public interest in preserving the confidentiality of the protected confidence.”

12.  In making the decision under subsection (1), the Court must have regard to the following non-exhaustive factors (s 79H(3)):

(a) for a criminal proceeding—the extent to which disclosure of the protected confidence is necessary for an accused person to make a full defence; and

(b) the public interest in ensuring that victims of sexual offences receive effective counselling or other treatment; and

(c) the extent to which disclosure of protected confidences may dissuade victims of sexual offences from seeking counselling or other treatment or diminish the value of counselling or other treatment; and

(d) whether the evidence will have a substantial probative value to a fact in issue and whether other evidence of similar or greater probative value is available about the matters to which the evidence relates; and

(e) the likelihood that disclosure of the protected confidence will affect the outcome of the case; and

(f) whether disclosure of the protected confidence is sought on the basis of a discriminatory belief or bias; and

(g) whether the person to or by whom the protected confidence was made objects to the disclosure of the protected confidence; and

(h) the nature and extent of the reasonable expectation of confidentiality for the protected confidence and the potential prejudice to the privacy of anyone, including to the extent to which any interest in confidentiality or privacy has been lessened by the passage of time or the happening of any event since the protected confidence was made.

13.  I have been advised by the Director of Public Prosecutions (“the Director”) that the protected confider does not object to the disclosure of the protected confidences listed in Annexure A.

14. I have carefully considered each of the criteria set out in s 79H(3) of the Act.

15.  As I observed at [11] of Franklin (No 1), the present case is unusual. The Director accepts that there is evidence that supports the applicant’s contention that the complainant has previously made a false allegation of physical and/or sexual violence against him. The Director also accepts that the evidence supports the applicant’s contention that there is a connection between the false allegation and the complainant’s mental health and alcohol use.

16. In the unusual circumstances of this case, I am satisfied that the public interest in ensuring the applicant is given a fair trial outweighs the public interest in preserving the confidentiality of the protected confidence. Of particular weight in my decision has been the factors set out in ss 79H(3)(a), (e) and (g) of the Act.

17. In respect of the documents listed at [6] above, I will make orders for the prosecution to have first access for inspection of the documents pursuant to s 79I(2)(d) of the Act. For completeness, I also note that the leave which I grant under s 79D(2) of the Act is limited to leave for the disclosure of the protected confidences to the parties. Further leave will need to be granted under s 79D(2) before any document is admitted in the proceedings: s 79(3) of the Act.

18. There are other documents that have been produced by the ACT MHJHADS in response to the 30 January 2023 subpoena which are not “protected confidences” within the meaning of s 79A of the Act and which are not included in the new schedule. In particular, the documents include medical records that make no reference to any sexual or family violence offence. Disclosure of those documents is not governed by Division 4.4.3 of the Act. There is no reason not to permit the parties to have access to these documents.

19. The documents produced by the ACT MHJHADS in response to the 30 January 2023 subpoena are medical records where the protected confidences appear sporadically and are sometimes only located on a discrete part of the record that does not otherwise contain protected confidence material. Separating the protected confidence documents would make it more difficult for the parties to understand the context of in which the protected confidence documents appear. For this reason, I have determined to permit the parties to be given access to the file produced by the ACT MHJADS in its entirety. The protected confidence documents are tabbed in that file with tab numbers that correspond to the document numbers referred to in Annexure A.

20.  I was initially of the view that the order granting access should be limited to permit copies to be made only for the legal representatives. However, Mr Ginges explained that it may be necessary for his instructing solicitor to provide a copy of the protected confidence documents to any expert retained on behalf. Mr Ginges also explained that it may be necessary for some of the protected confidence documents to be annexed to an affidavit in support of any application for the adducing of tendency evidence. As there is an implied undertaking in respect of all subpoenaed documents that they will only be used for the purpose of the proceedings and not for any collateral purpose (Harman v Secretary of State for the Home Department [1983] 1 AC 280 at 295), I am satisfied that it is not necessary to make an order expressly limiting the purpose for which the documents are copied or the persons to whom copies may be provided.

21. Rule 6609(12) of the Court Procedures Rules 2006 (ACT) provides that:

Usual order in relation to a document or thing, means an order that the party given 1^st access to inspect and copy the document or thing has exclusive access to the document or thing for 5 days after the day the order is made, then any other party to the proceeding has access to inspect and copy the document or thing.

22.  I will make the “usual order” in respect of both the protected confidence documents and the documents that are not protected confidences.

Orders

23.  The orders of the Court are as follows:

1. In respect of the documents produced by the ACT MHJHADS in response to the subpoena dated 30 January 2023 that are not listed in Annexure A to this judgment:

(i)       I make the usual order, with first access to the prosecution to inspect and copy.

1. In respect of the documents produced by the ACT MHJHADS in response to the subpoena dated 30 January 2023 that are listed in Annexure A to this judgment:

(i)     Leave is granted under s 79D for disclosure of the documents to the legal representatives for the parties and to any person for whom disclosure is necessary for the purpose of the proceeding.

(ii)    I make the usual order, with first access to the prosecution to inspect and copy.

I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker

Associate: A Gallagher/A Bucci

Date: 15 March 2023

ANNEXURE A

DPP v Franklin

SCC 214 of 2022

New Protected Confidences Index

(Documents produced under subpoena dated 30 January 2023)

Document No	Date	Description	Old Index Document Number
1.	25/8/2022 at 16:48	Canberra Health Services Mental Health Conversions – MAJICeR File Note (page 5)	17
2.	24/6/2022 at 11:58	Canberra Health Services Mental Health Conversions – MAJICeR File Note (page 21)	Not previously indexed.
3.	22/6/2022 at 20:41	Canberra Health Services Mental Health Conversions – MAJICeR Message Note (page 24)	16
4.	7/6/2022 at 18:23	Canberra Health Services Mental Health Conversions – MAJICeR File Note (page 28)	Not previously indexed.
5.	28/3/2022 at 9:20	Canberra Health Services Mental Health Conversions – MAJICeR File Note (page 34)	14
6.	27/3/2022 at 14:40	Canberra Health Services Mental Health Conversions – MAJICeR Letter (page 36)	13
7.	27/3/2022 at 13:34	Canberra Health Services Mental Health Conversions – MAJICeR File Note (page 40)	12
8.	23/3/2022 at 15:13	Canberra Health Services Mental Health Conversions – MAJICeR Message note (page 45)	25
9.	23/03/2022 at 20:25	Canberra Health Services Mental Health Conversions – Maier Message note (page 46)	29
10.	23/3/2022 at 15:21	Canberra Health Services Mental Health Conversions – MAJICeR File Note (page 53)	Not previously indexed.
11.	11/5/2020 at 10:31	Canberra Health Services Mental Health Conversions – MAJICeR File Note (page 118)	15
12.	11/5/2020 at 10:34	Canberra Health Services Mental Health Conversions – MAJICeR File Note (page 119)	15
13.	13/3/2020 at 9:41	Canberra Health Services Mental Health Conversions – MAJICeR File Note (page 137)	10
14.	19/11/2019 at 12:09	Canberra Health Services Mental Health Conversions – MAJICeR File Note (page 149)	8, 9
15.	11/12/2018 at 10:40	Canberra Health Services Mental Health Conversions – MAJICeR File Note (page 199)	Not previously indexed.
16.	5/11/2018 at 12:27	Canberra Health Services Mental Health Conversions – MAJICeR File Note (page 218)	Not previously indexed.
17.	5/11/2018 at 5:13	Canberra Health Services Mental Health Conversions – MAJICeR File Note (page 219)	6
18.	5/11/2018 at 5:13	Canberra Health Services Mental Health Conversions – MAJICeR File Note (page 220)	7
19.	5/11/2018 at 5:13	Canberra Health Services Mental Health Conversions – MAJICeR File Note (page 221)	Not previously indexed.
20.	4/11/2018 at 14:57	Canberra Health Services Mental Health Conversions – MAJICeR File Note (page 224)	4
21.	4/11/2018 at 14:57	Canberra Health Services Mental Health Conversions – MAJICeR File Note (page 225)	4
22.	4/11/2017 at 17:01	Canberra Health Services Mental Health Conversions – MAJICeR File Note (page 225)	5
23.	2/11/2017 at 17:16	Canberra Health Services Mental Health Conversions – MAJICeR File Note (page 226)	5
24.	02/11/2018 at 00:27AM	Canberra Health Services Mental Health Conversions – MAJICeR File Note, page 231	Not previously indexed.
25.	02/11/2018 at 03:40AM	Canberra Health Services Mental Health Conversions – MAJICeR File Note – Clinical Notes, page 231-232	Not previously indexed.
26.	02/11/2018 at 03:40AM	Canberra Health Services Mental Health Conversions – MAJICeR File Note – Clinical Notes, page 233	2
27.	02/11/2018 at 07:42PM	Canberra Health Services Mental Health Conversions – MAJICeR File Note – Clinical Notes, page 236	3
28.	05/11/2018 at 14:33PM	Canberra Hospital and Health Services Medical in Confidence Discharge Summary, at page 1 of 3 and page 2 of 3	18, 19
29.	1/11/2018	ACT Health Emergency Department Resuscitation Flowchart, page 1 of 2	20
30.	01/11/2018 at 23:20PM	ACT Health Emergency Department Continuation Sheet, page 1 of 2 and page 2 of 2	21, 22
31.	13/03/2020	ACT Health Suicide Vulnerability Assessment Tool eForm – page 1 of 5	Not previously indexed.
32.	18/05/2020	ACT Health Suicide Vulnerability Assessment Tool eForm – page 1 of 5	Not previously indexed.
33.	18/05/2020	ACT Health Suicide Vulnerability Assessment Tool eForm – page 1 of 5 (duplicate of document no 34)	Not previously indexed.
34.	22/03/2021 at 09:32AM	Adult Community Mental Health Services Triage – page 2 of 3	24
35.	23/03/2022 at 20:03PM	Canberra Health Services Mental Health Services Triage Form, page 2 of 5 and page 3 of 5	25, 26
36.	23/03/2022	ACT Health Suicide Vulnerability Assessment Tool eForm – page 1 of 5	30
37.	27/03/2022	ACT Health Suicide Vulnerability Assessment Tool eForm – page 1 of 5	31
38.	28/03/2022	ACT Health Suicide Vulnerability Assessment Tool eForm – page 1 of 5	32
39.	23/03/2022	Canberra Health Services Mental Health Services Triage Form – page 3 of 5 and page 5 of 5	27, 28
40.	22/06/2022	ACT Health Suicide Vulnerability Assessment Tool eForm – page 1 of 5	33
41.	ND	Canberra Health Services Comprehensive Report (Clinical Incident) – page 6 of 8	Not previously indexed.

Differences in Schedules

Protected confidence documents in previous schedule (relating to documents produced under subpoena dated 12 September 2022) not apparently produced under subpoena dated 30 January 2023:

Document 1 – dated 15 August 2022 – ‘Client Registration Form’

Document 11 – dated 13 March 2020 – PMHCS Initial Presentation (IP) Assessment