Director of Public Prosecutions v Matthews

[2015] VCC 1982

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-00783

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRYAN MATTHEWS

---

JUDGE:	HER HONOUR JUDGE SEXTON
WHERE HELD:	Melbourne
DATE OF HEARING:	23 November 2015
DATE OF RULING:	23 November 2015
CASE MAY BE CITED AS:	DPP v Matthews
MEDIUM NEUTRAL CITATION:	[2015] VCC 1982

REASONS FOR RULING
---

Subject:        CRIMINAL LAW
Catchwords: Application for leave pursuant to s.32C of the Evidence (Miscellaneous Provisions) Act 1958.
Ruling: Leave granted

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Pirrie	OPP
For the Accused	Ms J. Condon	Taylor Preston

1HER HONOUR:  I have confirmed that I have not been able to speak to Judge Bourke.  He is at the Parole Board today and will have two matters at 10 o'clock tomorrow morning and then this trial at 10.30 so I have continued on in this matter. 

2So if I can deal first of all with the applications in respect of the Child and Adolescent Mental Health Service, otherwise known as CAMHS and Stepping Stones, both associated with Monash Health.  Application was made on 18 November for leave to compel the production of documents from Monash Health in relation to those two organisations I have just referred to with a trial date of 23 November.  I waived notice in respect of the producing parties and given the urgency of the timeframe ordered that the material be produced to the court alone under 32C(6) of the Evidence (Miscellaneous Provisions) Act. 

3The prosecution advised me that the complainant objected to the production or leave being given for the material to be subpoenaed and presumably to production.  When the material was received from Monash Health, it included a letter indicating that they wished to be heard on any application for the material to be released.  I am conscious of all of those matters but I am also conscious that the trial was due to start today and is now going to start tomorrow at 10.30 and it is now 4.30 on the day before. 

4On the occasion of the application on 18 November I was provided with a report by Associate Professor Brewer, dated 20 April 2015, which was sought by the prosecution in respect of the complainant as to whether she had a cognitive impairment; ultimately it was found she did not.  But that provided a great deal of the information which was then sought from Monash Health.

5The material is received under 32C(6) for the purpose of assisting the court in making a decision as to leave and I have decided that the material has assisted me and that in all the circumstances I am satisfied on the balance of probabilities that the test is met for the granting of leave for the issuing of a subpoena. 

6Because of the short timeframe, I proceed then immediately to the next step which is releasing the material or producing it, as it is referred to in the relevant legislation.  Because of the inability to have time to have the producing party appear and because of the complainant's objection, I am even more conscious of the need to preserve this material's confidentiality where possible.  For that reason I have decided pursuant to 32D(3) to grant leave for the producing of material from Monash Health in the form of a chronology with direct references to material which meets the test.  Section 32D(3) permits the material to be released in any form.

7Just before I do provide that material, I want to make it clear - and I am able to refer to the material now having reached the level of satisfaction that I have because we have gone beyond 32C(6) – that what was sought was in particular the extent of a diagnosis, the complainant having told Associate Professor Brewer that she had been diagnosed with a borderline personality disorder.  So the extent of the diagnosis, the symptoms displayed by her as a consequence of the diagnosis, treatment regime and whether in the context of counselling and therapy she had been given an opportunity to make disclosures, and that was both in respect of CAMHS and Stepping Stones. 

8The file received from the producing parties is extremely disorganised and unclear.  There is, for example, no discharge summary.  I have been able to glean a number of diagnoses which are detailed in the material I am about to hand down but it seems that the complainant was never formally diagnosed with borderline personality disorder. The symptoms are not referred to in any detail.  The treatment regime is not at all clear but from the material I am releasing, appears to be consist of weekly outpatient appointments, but may not have always been weekly but that is, as I say, really unclear, in the nature of psychoeducation; and medication which seems to have been prescribed by her general practitioner. 

9Finally, in respect of the opportunity to make disclosures, on one view of it, any of those appointments would have been an opportunity to make a disclosure.  There is no reference to the sexual assaults, the subject of the trial allegations.  There are a couple of occasions on which there is reference to sexual assault with no details given.  The one file has all of the material from CAMHS and from Stepping Stones and as I said, it is on the one hand very dense, on the other hand, lacking in detail. 

10So in order to preserve the confidentiality of the materials but provide the best response to the application that can be done, I will now hand down to counsel the document which is headed 'Production of Confidential Communications Pursuant to s.32D(3) of the Act'.  So if I can just indicate, obviously the date is on the left-hand side.  On the right-hand side is what is contained in the file.  It is in summary form except where there are quotation marks in which case it is a direct quote from the file. 

11Where it says "Diagnoses noted" or "Diagnosis noted", that is a note from the file, the Monash Health file.  There is a reference, for example, 3 December, copy of a court report from DHHS noting that, there is a direct quote from the court report but then I have noted that there is no particular note of that diagnosis in the file at that date.  The same applies to the reference to an undated report which, however is after the referral to Stepping Stones, that is a direct quote from the DHHS crisis management plan. 

12So that is the ruling, if you like, in respect of both the application to grant leave to issue a subpoena and an application which would have followed to produce.

13Are there any questions about that ‑ ‑ ‑

14MR PIRRIE:  No, Your Honour.

15HER HONOUR:  ‑ ‑ ‑ process?

16MS CONDON:  Well I certainly have a question, Your Honour.  Is Your Honour - I mean I would obviously like to see the material that Your Honour has made the chronology of.  Are we in a position to make that order ‑ ‑ ‑

17HER HONOUR:  No, that's why you've got the chronology.

18MS CONDON:  Yes.

19HER HONOUR:  The material is on one hand very sensitive, on the other hand there is quite a deal of material from Associate Professor Brewer's report that really covers the same sort of material so that's already within the hands of the parties.

20MS CONDON:  Yes, Your Honour.

21HER HONOUR:  And I might say that it is not usual but it has been done before that a document of this nature has been prepared pursuant to 32D(3) and whilst not ideal, it's the balancing of the competing interests and that seems to me to be the best way to deal with it in this case. 

22Now, in respect of Headspace, I do propose to provide the parties with some redacted material but time ran away from me and I wasn't able to do that so I will have that available for the parties tomorrow morning and that will probably need to be provided to His Honour Judge Bourke to provide to hand down because I will be otherwise engaged tomorrow morning. 

23There is the possibility that I could say come at 10 o'clock but I've already caused the parties to come back on a number of occasions so it seems to me it might as well be for the sake of half hour be in the hands of His Honour for provision unless the parties have any other view about that.

24MR PIRRIE:  No, Your Honour.

25MS CONDON:  No, Your Honour. 

26HER HONOUR:  I should say on the transcript that obviously from what I have said I am satisfied that the test is met in respect of Headspace and that I am then proceeding to the next step of a foreshadowed application for leave to produce and that material would be provided in redacted form as I have indicated. 

27There were two periods of attendance at Headspace.  One around the time of the material referred to in the Monash Health file, so 2008, and then a later period in 2012 and 2013.  So the application sought all records and so I will be dealing with both periods of time that the complainant attended at Headspace and I am conscious that so far as the material relates to a period of time well before the allegations were reported but the Headspace ‑ ‑ ‑

28MS CONDON:  Well Your Honour, with respect, that's not quite right.  The evidence actually as I've uncovered it is that she made a disclosure to her parents when she was 16 years of age.  So it does actually parallel a ‑ ‑ ‑

29HER HONOUR:  Well, yes.

30MS CONDON:  ‑ ‑ ‑ time of a disclosure. 

31HER HONOUR:  Yes, there is a reference to that in the material that she had told others before.

32MS CONDON:  Her parents when she was 16.

33HER HONOUR:  But it wasn't - yes, wasn't clear.  But there is a reference in - certainly in Headspace material as you will see that refers back to the fact that her father was aware.

34MS CONDON:  And her mother.

35HER HONOUR:  Yes.  Well the reference in Headspace is in respect of her father.  But in any event, we're covering both of those periods of time.  All right, well I thank counsel for making themselves available late in the day and I'll adjourn now until 9 am. 

36ADJOURNED UNTIL TUESDAY 24 NOVEMBER 2015