Director of Public Prosecutions v Franklin (No 3)
[2023] ACTSC 165
•31 May 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Director of Public Prosecutions v Franklin (No 3) |
Citation: | [2023] ACTSC 165 |
Hearing Date: | 26 May 2023 |
DecisionDate: | 31 May 2023 |
Before: | McCallum CJ |
Decision: | The application in proceeding filed 10 May 2023 is refused. |
Catchwords: | EVIDENCE – SUBPOENAS – Public Interest Immunity – Family and sexual violence communications privilege – Application for leave to compel the production of protected confidences – whether threshold test for leave satisfied – where subpoena seeks confidential counselling records of sexual assault counsellor – whether records required for the purpose of obtaining expert evidence – where other asserted forensic purposes speculative |
Legislation Cited: | Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 79A, 79D, 79F, 79G Evidence (Miscellaneous Provisions) Amendment Act 2003 (ACT) Evidence (Miscellaneous Provisions) Amendment Bill 2003 |
Cases Cited: | R v Chute [2019] ACTSC 197 |
Texts Cited: | Annie Cossins, ‘Contempt or Confidentiality?’ (1996) 21(5) Alternative Law Journal 223 Australian Capital Territory, Presentation Speech, Legislative Assembly, 26 June 2003, 2532 (Jon Stanhope, Chief Minister, Attorney-General, Minister for Community Affairs and Minister for the Environment) Model Criminal Code Officers Committee, Chapter 5 – Sexual Offences Against the Person (Model Criminal Code Report, May 1999) |
Parties: | Director of Public Prosecutions Patrick Thomas Franklin ( Accused) |
Representation: | Counsel D Swan ( DPP) K Ginges ( Accused) |
| Solicitors ACT Director of Public Prosecutions Hugo Law Group ( Accused) | |
File Numbers: | SCC 214 of 2022 SCC 215 of 2022 |
McCALLUM CJ:
The applicant in these proceedings is due to stand trial on an indictment containing one count of forcible confinement, two counts of sexual intercourse without consent and four counts of intentionally choking, suffocating or strangling. All of the offences are alleged to have been committed on the same date, 18 May 2022, against the same complainant, a former intimate partner of the applicant with whom he had remained friends.
On 31 May 2023, I refused an application by the applicant for leave to issue a subpoena to Headspace National Youth Mental Health Foundation Ltd requiring the production of counselling records relating to the complainant. Leave was required because the documents sought were of a kind that would include protected confidences within the meaning of s 79A(1) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT).
At common law, the confidential counselling records of a sexual assault counsellor enjoyed no immunity from production in legal proceedings. Late last century, in that legal context, it became increasingly common in sexual assault trials for such records to be used to attack the credibility of the complainant.
The ability of accused persons to compel the production of material that might undermine the credibility of their accusers is an important right. For sexual assault counsellors, however, the idea that they could be compelled to produce their confidential counselling notes to be used for that purpose in the criminal trial of the alleged perpetrator was a source of considerable angst, so much so that in 1995 a counsellor from the Canberra Rape Crisis Centre was imprisoned for contempt of court rather than handing over her client’s records: Annie Cossins, ‘Contempt or Confidentiality?’ (1996) 21(5) Alternative Law Journal 223.
That incident highlighted the existence of an uneasy tension between competing interests of justice. Increasing reliance on counselling records to discredit complainants in sexual assault trials raised obvious concerns for counsellors, for whom confidentiality and trust are essential tools, and was even perceived to operate as a disincentive for victims to seek counselling at all. On the other hand, the prospect of preventing access to potentially exculpatory material posed an obvious threat to the right of accused persons to a fair trial.
Recognising the absence of a uniform approach to that vexed question, the Standing Committee of Attorneys-General referred the issue to the Model Criminal Code Officers Committee to formulate uniform laws to regulate the production of and access to sexual assault counselling records in criminal proceedings. The issue was addressed in Chapter 5 of the Model Criminal Code Report released in May 1999 and headed “Sexual Offences Against the Person”. The Report acknowledged the importance of confidentiality to the efficacy of counselling and warned against the risk of failure to reach or effectively treat a significant number of persons for a recognised health problem if some protection of that confidentiality were not afforded: at 277. At the same time, the Report recognised the importance of the right to compulsory process in criminal procedure and cautioned that a trial in which that right was denied would not be a trial according to law: at 283. The creation of an absolute immunity for confidential counselling records was rejected for that reason. The Committee instead recommended the creation of a qualified statutory immunity against the production of sexual assault counselling records in criminal trials.
The Report included draft model provisions that would give effect to that recommendation. The model provisions were adopted in the Territory in 2003 by the Evidence (Miscellaneous Provisions) Amendment Act 2003 (ACT). The immunity was extended to civil proceedings in 2011 by the Evidence (Miscellaneous Provisions) Amendment Act 2011 (ACT).
The provisions concerning sexual assault counselling records are contained in div 4.4.3 of ch 4 of the Act under the heading “protection of counselling communications”. The term “counselling communications” is defined in s 79A(3) to mean a communication made in circumstances that give rise to a reasonable expectation of confidentiality or a duty of confidentiality in the particular instances specified in the section. A “protected confidence” is defined in s 79A(1) to mean “a counselling communication made by, to or about” the complainant in the sexual offence proceeding (emphasis added).
As contemplated by the Model Criminal Code Officers Committee, the effect of those provisions is to strike a balance between, on the one hand, the public interest in supporting the availability and efficacy of counselling for traumatised persons by preserving the confidentiality of communications between counsellors and their clients and, on the other hand, the interests of justice in affording accused persons a fair trial. The provisions achieve that balance by conferring immunity from disclosure in respect of confidential counselling communications concerning a complainant in sexual or family violence offence proceedings but qualifying that immunity by making provision for disclosure with the leave of the Court. It is to be recalled in this context that a fair trial is not a perfect trial. Some content must be given to the public interest in affording the immunity as well as to the public interest in affording the right to a fair trial.
The immunity extends to requiring leave to issue a subpoena seeking the production of a protected confidence.
On 12 September 2022, Mr Franklin sought by subpoena to obtain records relating to the complainant’s mental health held by the ACT Mental Health, Justice Health and Alcohol and Drug Service. The records sought were of a kind that would include protected confidences. Accordingly, it was necessary for Mr Franklin to apply for leave under s 79D of the Act to have the subpoena issued (this requirement was initially overlooked but was cured retrospectively).
On 30 January 2023, Baker J granted leave under s 79D(2) to issue the subpoena. Her Honour then conducted a preliminary examination of the documents produced, as required under s 79G of the Act. On 15 March 2023, her Honour gave leave for disclosure of the protected confidences to the legal representatives for the parties and to any person for whom disclosure is necessary for the purpose of the proceeding.
It is important to note, as made plain by s 79D(3)(b), that it will still be necessary for any party seeking to have that material admitted into evidence in the proceeding (for example, by tendering or cross-examining on it) to obtain leave for that separate purpose.
The material produced as a result of the leave granted by Baker J included a medical note from a Canberra Health Services file which discloses the existence of a counselling relationship between the complainant and a named counsellor at Headspace. Relying on that note, Mr Franklin brought a further application seeking leave to have a second subpoena issued requiring the production of documents from Headspace. That is the application I refused.
Section 79F imposes a threshold test for the grant of leave to issue a subpoena:
Threshold test––legitimate forensic purpose
(1) The court must refuse the leave sought under section 79E if not satisfied that the applicant has established a legitimate forensic purpose for seeking the leave.
(2) To establish a legitimate forensic purpose, the applicant must—
(a) identify a legitimate forensic purpose for seeking the leave; and
(b) satisfy the court that there is an arguable case that the evidence in relation to which the leave is sought would materially assist the applicant’s case in the proceeding.
(3) The court must decide whether or not to refuse the application under this section before it conducts a preliminary examination of the protected confidence evidence under section 79G.
Subsection 79F(3) makes plain that the fact that the Court undertakes a preliminary examination before permitting documents to be disclosed to the parties is not a proxy for satisfaction of the threshold test; the Court must engage with the test for establishing a legitimate forensic purpose in accordance with s 79F(2) and has no authority to grant leave unless actually satisfied in the terms of that test.
To put the matter another way, the Court’s state of mind of being satisfied (on the applicant’s onus) as to the existence of a legitimate forensic purpose is a jurisdictional precondition to the grant of leave. The imposition of that hurdle reflects the consideration that the effect of granting leave is to compel a counsellor (at pain of being imprisoned, as the Canberra Rape Crisis Centre counsellor learned) to breach their client’s confidentiality, and so potentially harm the therapeutic relationship, by making records available to the Court potentially for use against the client.
The content of that test was considered by Mossop J in R v Chute [2019] ACTSC 197 at [9]-[19]. His Honour noted that the requirement is to satisfy the court of an arguable case that the evidence would materially assist the applicant’s case. In that context, his Honour considered the practical difficulty that a party seeking leave to issue a subpoena will often not know the contents of the documents sought and so will only be able to establish “forensically significant matters which they might contain” (emphasis in the original): at [9].
Following a careful analysis of that issue, Mossop J concluded at [19]:
[T]he requirement in s 79F(2)(b) that there be “an arguable case that the evidence in relation to which the leave is sought would materially assist the applicant’s case in the proceeding” is to be interpreted as if the reference to an “arguable case” was the equivalent of “a reasonable possibility in light of the known facts” and did not require at the threshold stage the establishment of the facts that provide the material assistance.
For the purposes of the application before Baker J, the Director of Public Prosecutions conceded that there was evidence to support the applicant’s contention that the complainant had previously made a false allegation against him and evidence to support the submission that there was a connection between the false allegation and the complainant’s mental health and alcohol abuse. On that premise, her Honour was satisfied that there was a legitimate forensic purpose for the issue of the subpoena to ACT Mental Health, Justice Health and Alcohol and Drug Service. As recorded at [13] of her Honour’s unpublished judgment dated 30 January 2023, her Honour was careful, in order to confine the scope of the subpoena only to documents having a legitimate forensic purpose, to limit the subpoena to documents relating to the complainant’s mental health and alcohol or drug use.
In the application before me, the prosecution for good reason did not adhere to concession that the complainant had previously made a false allegation against the applicant. I will return to that issue.
The applicant specified his grounds for seeking leave to obtain the Headspace counselling records in the following terms:
a. The documents the Accused seeks leave to have produced are mental health counselling records of [the complainant].
b.The prosecution brief of evidence discloses that at the time of the alleged offending the Complainant was on prescription medication for mental health diagnoses.
c.The Complainant has, in the past, made allegations of physical and sexual violence against the Accused which were not pursued by the police. The Applicant contends that these allegations were false and/or unsubstantiated.
d.It appears that in some instances at the time of these other allegations, the Complainant was suffering from a mental health condition or disorder, or an episode, which affected her presentation and allegations.
e.Records produced in response to [an earlier subpoena issued to ACT Health, Justice Health, Alcohol and Drug Services] disclose that the Complainant was referred for counselling through [Headspace] at or around the time of making the aforementioned allegations.
f. Production and disclosure of these records will materially assist the preparation of the Accused's defence, including in respect of expert psychiatric or psychological evidence, and in the preparation of a tendency application.
g.The Accused has pleaded not guilty to all counts brought against him. Facts in issue will include whether the Complainant was experiencing mental health conditions at the time of the alleged offending and reporting to Police, and if so the extent, nature and effect of those conditions.
Upon analysis, the central contentions made by those grounds are that the complainant has a history of mental health conditions or disorders and that she has a history of making false or “unsubstantiated” allegations of physical or sexual violence. In accordance with the principle stated by Mossop J in Chute, the argument must be that there is a reasonable possibility in light of those “established facts” that the Headspace records would materially assist the applicant’s case, presumably because they might show a causal connection between the mental health conditions and the alleged false complaints.
As already noted, the prosecutor did not accept at the hearing before me that the complainant has previously made false allegations of sexual assault against the applicant. On my analysis of the material relied upon by the applicant to make good that contention, the most that can be said is that aspects of her earlier complaints were unsubstantiated and that the complaints were not accepted or acted upon by police. No doubt that was largely due to aspects of her behaviour which made it extremely difficult for police to obtain any reliable account of what had occurred. I make no criticism of police in that context. It is clear that they were called to deal with an extremely difficult situation. However, to say that the allegations were not substantiated or acted upon is not the same as saying that the allegations were false. Other aspects of the complainant’s allegations of sexual conduct were admitted but explained by the applicant. I do not accept that it is a “known fact” that the complainant has previously made a false allegation or allegations against the applicant.
I accept that the issue of a possible connection between the complainant’s mental health conditions and her perception and representation of events was a legitimate forensic inquiry. However, the documents now sought as a result of the earlier production are counselling records (the subpoena seeks a much broader range of mental health records but the record on which the application is based refers only to counselling and that should define the limit of the application).
In the affidavit relied upon in support of the application, the applicant identified three forensic purposes of the subpoena. The first was “to obtain expert evidence about the nature and effect of [the complainant’s] mental health conditions/disorders”. In oral submissions, counsel explained further that the documents were sought “in respect of obtaining an expert report from a suitably qualified psychiatrist as to what it means to have a cluster D type personality”. It was contended that a psychiatrist providing such a report would rely (presumably by way of history or assumption) on what the complainant says about her mental health when in treatment or “not in the clutches of a distressed episode”.
There was no evidence to support the assertion that a psychiatrist would need to place any reliance on counselling records in the preparation of an expert report. The proposed opinion evidence concerns “the nature and effect of [the complainant’s] mental health conditions/disorders”. The evidence relied upon to obtain the mental health records produced in response to the first subpoena establishes that the complainant has been diagnosed with various mental health conditions or disorders and has been prescribed medication to treat those conditions. An expert could properly speak to those conditions, assuming the opinion provided was admissible under s 108C of the Evidence Act 2011 (ACT).
However, it is not established that the complainant’s counselling records would be required for that task. Counselling is different from diagnosis and treatment. Speaking in favour of of the adoption of the Evidence (Miscellaneous Provisions) Amendment Bill 2003, the then Chief Minister and Attorney-General, Mr John Stanhope noted the “intensely private” nature of such records, being records which are likely to explore “fears and feelings”: Australian Capital Territory, Presentation Speech, Legislative Assembly, 26 June 2003, 2532 (Jon Stanhope, Chief Minister, Attorney-General, Minister for Community Affairs and Minister for the Environment). I am not satisfied that there is a reasonable possibility that the examination of therapeutic exchanges of that kind would materially assist an expert psychiatrist to explain the nature and effect of any conditions or disorders with which the complainant has been diagnosed.
The second forensic purpose identified in the affidavit was to support a pre-trial tendency application by the applicant concerning the complainant. The inference that counselling records would materially assist that aspect of the applicant’s case is entirely speculative. If the applicant wishes to rely on the previous allegedly false complaints as tendency evidence, the relevant evidence will be that recorded in the police records in relation to those incidents.
In oral submissions, the applicant identified a third forensic purpose for seeking the complainant’s counselling records, namely, for the purpose of cross-examining the complainant about the events themselves. Counsel for the accused identified the forensic purpose as being to know “what else she has told other people following the events in May 2022”. Again, that is entirely speculative and is precisely the kind of forensic exercise against which the immunity was intended to afford protection.
For those reasons, I was not satisfied that the threshold test under s 79F was satisfied in respect of the proposed subpoena to Headspace. It followed in accordance with the terms of the section that I was required to dismiss the application.
| I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: 4 July 2023 |
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