Director of Public Prosecutions v Hare (Ruling No.1)
[2012] VSC 181
•4 May 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 90 of 2011
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JUSTIN MICHAEL HARE |
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JUDGE: | LASRY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 May 2012 | |
DATE OF RULING: | 4 May 2012 | |
CASE MAY BE CITED AS: | DPP v Hare (Ruling No.1) | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 181 | |
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CRIMINAL LAW – Application to set aside defence subpoena for the production of documents – Rule 42.04 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) – Subpoena ordering the production of medical and mental health records of the complainant – R v Efandis (Ruling No. 1) [2008] VSC 380.
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APPEARANCES: | Counsel | Solicitors |
| For the LatrobeRegionalHospital | Mr P Hanks SC with Mr D Robinson | Ms L Hunter |
| For the Director of Public Prosecutions | Mr P D’Arcy | Office of Public Prosecutions |
| For the Accused | Mr D Hallowes | James Dowsley & Associates |
HIS HONOUR:
Justin Michael Hare is charged with four offences arising out of incidents which occurred on 25 December 2010. Those charges include attempted murder, intentionally causing serious injury and recklessly causing serious injury, both of which are alternatives to the attempted murder, and threatening to inflict serious injury to another person as a separate charge. The victim of these alleged offences is the former de facto partner of the accused, Ms Catherine Wilkinson.
It is apparent from the prosecution opening and the defence response that whether or not the accused inflicted certain injuries on the victim is in issue and, in particular, whilst no issue was taken with the fact that Ms Wilkinson presented to police and to the hospital with injuries, it is denied that the accused caused those injuries, rather that they were either self-inflicted or caused by other means unknown to him.
The solicitors for the accused have issued a number of subpoenas addressed to medical institutions including the Belvedere Park Medical Centre in Seaford, Frankston Hospital and the Latrobe Regional Hospital. The subpoenas have required the production of various medical records in relation to the treatment of Ms Wilkinson and, in the case of the subpoena to the Latrobe Regional Hospital, specifically sought medical records concerning Ms Wilkinson between January 2010 and June 2010.
In compliance with the subpoena, the relevant material was provided to the Supreme Court Prothonotary but, in its response, the Latrobe Regional Hospital indicated that it wished to object to the production of the subpoenaed material to the solicitor for the accused. Ms Lucy Hunter, corporate counsel for the Latrobe Regional Hospital, submitted by a letter to the Court dated 30 March 2012, that s 141 of the Health Services Act 1988 and s 120A of the Mental Health Act 1986 do not permit such information to be released to the solicitor for the accused.
On 3 May 2012, Mr P Hanks QC with Mr D Robinson, appeared on behalf of the Latrobe Hospital to argue that the subpoena affecting that hospital should be set aside on a number of bases which were identified in very helpful written submissions. In summary, the basis for the submissions was that the records are protected through the operation of s 141(2) of the Health Services Act 1988 and s 120A(2) of the Mental Health Act 1986 and by public interest immunity under the common law.
On behalf of the accused, Mr Hallowes of counsel indicated that the only records he seeks are those relating to any incidents of self harm or threatened self harm by Ms Wilkinson.
The purpose of the subpoena is to obtain information which may properly be used to cross-examine Ms Wilkinson in this trial. In his Honour’s judgment in Ragg v Magistrates’ Court of Victoria, Bell J, after reviewing the authorities, stated: [1]
In summary, an accused person is entitled to seek production of such documents as are necessary for the conduct of a fair trial between the prosecution and the defence of the criminal charges that have been brought. When objection is taken, the accused must identify expressly and with precision the forensic purpose for which access to the documents is sought. A legitimate purpose is demonstrated where the court considers, having regard to its fundamental duty to ensure a fair trial that there is a reasonable possibility that the documents will materially assist the defence. That is a low threshold, but it is a threshold.
[1](2008) 18 VR 300 at [96].
In the course of submissions on behalf of the Latrobe Hospital, counsel did not dispute that the subpoenaed documents have been sought for a legitimate forensic purpose, i.e. for cross-examination of that witness. It was accepted by Mr Hanks that, given the issues in the trial, the information sought by Mr Hallowes on behalf of his client would be relevant.
As I indicated during submissions, it is my view that the situation with which I must deal is, in all respects, the same as that which confronted Kaye J in R v Efandis.[2] In that case the accused man, Mr Efandis, had been charged with intentionally and unlawfully damaging by fire a house, which caused the death of George Marcetta. He was also charged with the murder of George Marcetta. One of the witnesses called as part of the Crown case was an inmate of the Dame Phyllis Frost Centre. She was expected to give evidence of relevant admissions made to her by the accused in relation to the charges. As a result, those acting for the accused issued subpoenas directed to Justice Health and to the Thomas Embling Hospital, seeking the production of medical and psychiatric records in relation to the witness.
[2](Ruling No 1) [2008] VSC 380.
Counsel appeared before his Honour in that case for Forensicare and for Corrections Victoria to claim that the documents which were the subject of the subpoena were privileged on the basis of public interest immunity. In their submissions, they relied on two decisions of Cummins J in this Court. In relation to the question of public interest immunity, Kaye J said as follows:[3]
In my view, in the current state of the authorities, the question is unresolved whether the documents contained in the files which are the subject of the subpoenas are documents of a class, or are documents which contain information of a class, which are prima facie the subject of public interest immunity. Certainly there are two decision of Cummins J of this Court at first instance which support the proposition that such documents may be the subject of public interest immunity.
[3]Ibid at [7].
His Honour then went on to refer to R v Evans[4] and Cliffordv Victorian Institute of Forensic Mental Health & Anor.[5] His Honour noted that as a result of the judgment of the Court of Appeal in Royal Women’s Hospital v The Medical Board of Victoria[6] it may be the case that the decisions of Cummins J are no longer good law.
[4]Unreported, Supreme Court of Victoria (16 April 1998).
[5][1999] VSC 359.
[6](2005) 15 VR 22.
In concluding the issue that his Honour needed to deal with, Kaye J said:[7]
In this case, I have examined the documents contained in the files which have been produced pursuant to the subpoenas. Having done so, I have come to the firm conclusion that, even if the documents contained in those files were prima facie the subject of a public interest immunity, any adverse effect caused by their disclosure would be substantially outweighed by the unfair prejudice to the accused if I upheld the privilege asserted on behalf of the two respondents to the subpoenas. The accused has been charged with two very serious criminal offences. As I stated, in the statement made by her to the police, Ms JP alleges that the accused made material admissions to her relating to her guilt of those two offences. Self evidently, the evidence of Ms JP has the potential to be particularly damaging to the accused in this case. Without revealing the contents of the files, it is clear that the documents contained in the files contain information which may be properly regarded by the jury as having a material effect on the credibility and reliability of Ms JP as a witness. In particular, they contain matters relating not only to the criminal history of Ms JP, but also to her longstanding psychiatric history, both of which matters might be, quite properly, made the subject of cross-examination on behalf of the accused. Clearly, those matters are potentially relevant to the assessment by the jury of the weight and worth of the evidence to be adduced from Ms JP.
[7]Ibid at [14].
His Honour accordingly concluded that even if the documents were the subject of public interest immunity, the immunity would not prevail in the face of the competing and predominant interest of the accused in fairly defending the charges against her, and the claim for privilege was rejected.
I have indicated that the approach taken by Kaye J in R v Efandis is entirely appropriate to deal with the issues raised on behalf of the Latrobe Hospital in this case and I respectfully adopt it. The question of whether the judgment of the Court of Appeal in Royal Women’s Hospital v The Medical Board of Victoria precludes public interest immunity applying in a case such as this is a question I do not need to decide for the same reason that Kaye J gave for not doing so. Even if the immunity does apply, it is in the interests of justice that counsel for the accused have access to the information for the purpose of, relevantly, cross‑examining Ms Wilkinson.
At the conclusion of the hearing on 3 May 2012, I indicated the basis on which the material will be made available to counsel for the accused, as follows:[8]
Mr Hallowes, what I have in mind is this, that this material will be made available to you, if you have a junior, you and your junior, if you have [an] instructing solicitor, you and your instructor. I have tagged parts of the material for the purposes of argument that appear to me to be relevant, but I emphasise whilst I have looked at the material, I haven't looked at it with great care. It seems to me that there is, in a sense, a time limit on this, a time as in how far back one can go. The most probative matters are matters which are reasonably proximate to this incident. What I have in mind is that before the witness is cross-examined… you examine this material, without being able to make copies of it, and indicate which of the items or any of the items in the material you wish to cross-examine about and give me enough notice to review them so I can decide whether in fact what you want to do is within what I contemplate.
…
I think you would have to look at the material here at the court and probably under my associate's, in effect, supervision. Not because there is any lack of trust in you, but because despite the way this argument has developed, I do consider these files to be very personal and very sensitive and I want there at least to be some demonstration of the fact that we take the unrelated but important privacy of this witness seriously. So there can't be any copying and the files can't be taken away.
[8]Transcript at 13, lines 2-31 (3 May 2012).
Given the manner in which the issue developed, with an acceptance of these arrangements by Mr Hanks on his client’s instructions, it follows that the application for the subpoena to the Latrobe Regional Hospital to be set aside is formally refused.
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