Director of Public Prosecutions v Pollard

[2016] VCC 1620

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00823

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANTHONY POLLARD

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JUDGE:	HER HONOUR JUDGE SEXTON
WHERE HELD:	Melbourne
DATE OF HEARING:	6 September 2016
DATE OF RULING:	6 September 2016
CASE MAY BE CITED AS:	DPP v Pollard
MEDIUM NEUTRAL CITATION:	[2016] VCC 1620

REASONS FOR RULING
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Subject: Criminal Law – s32C Application Evidence (Miscellaneous Provisions) Act

Catchwords:  Confidential Communications – sexual offences – substantial probative value – public interest in preserving confidentiality of documents – protected evidence

Legislation Cited:
Cases Cited:
Ruling:           Application Refused

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. A. Brown	OPP
For the Accused	Ms J. Condon	Tony Hargreaves and Partners
For Gippsland CASA	Mr G. W. Reynolds	Altavilla Vessali

HER HONOUR:

1I have before me an application on behalf of the accused for leave to produce evidence, that is release for inspection, evidence of a confidential communication.  A subpoena was issued by leave granted on 15 July 2016, and made returnable yesterday, and documents have been produced to the court in response to the subpoena, which was addressed to Gippsland CASA.

2The accused in this case is indicted on sexual offences said to have occurred in November 2014, and the matter is awaiting trial in the La Trobe Valley circuit.  The issue on the trial will be in respect of one of the allegations, whether that occurred at all, and in respect of other allegations where activity is admitted, whether there was a lack of consent.

3The producing party, Gippsland CASA, was represented by Counsel, and Counsel also represented the accused and the prosecution.

4On behalf of the accused, it was submitted that leave should be granted on two bases.  The first was seeking information about the catalyst for the decision of the complainant to report to police, given that some six or seven months had passed since the alleged offending, and the nexus that was said to arise from her attendance the day before at Gippsland CASA.  The complainant at committal, which was unsatisfactorily recorded unfortunately, seemed to indicate that the CASA counsellor had definitely played a "big role".  So the first basis was to explore the catalyst for her reporting to the police at that point. The second basis was the potential for a narrative to have been provided on that occasion, the day before she went to police, which it was submitted had greater relevance than any earlier complaints, because it was the day before that report.

5Counsel on behalf of the producing party submitted that the test was not met, and that it was a very high test, and submitted that the complainant had explained the reason for going to police when she did, and for not having gone to police before she did, and that there was nothing of substantial probative value, and certainly nothing to outweigh the public interest in preserving the confidentiality of the documents.  I was referred to the factor of the need for complainants, or victims as they are described in the legislation, to be encouraged to seek counselling after such events.

6Counsel for the prosecution submitted that the complainant had, by reference to her statement and at the committal, said why she went to the police when she did, and what had changed, and it was submitted that unless there was something in the material which is inconsistent, that it was hard to see how it could be said that there was substantial probative value in the material.  The same submission was made in respect of the potential for any narrative obtained at the time that she attended CASA the day before she reported to police.

7The test for granting leave is found in s.32D(1) of the Evidence (Miscellaneous Provisions) Act, and is both restrictive and conjunctive. In deciding whether to grant leave, the court must also have regard to the guiding principles in s.32AB of the Act, and although it seems in the terms of s.32D(1)(c) that it is restricted to the stage of admitting protected evidence into evidence, and although it seems that s.32D(2) is only to be taken into account for that purpose, I am of the view that regard should also be had to those matters, both (1)(c) and 32D(2), at the earlier stages, including this one of seeking production of the protected evidence. So I have considered all of those matters in light of the submissions.

8Following consideration of the submissions, and after a further perusal of the depositions, all of which I have read, I have formed the view that reciting the chronology is useful in determining if the test is met, and I will do so briefly.

9The alleged offending is said to have taken place on 30 November 2014, between the complainant and a person who was known to her, and immediately after a function which she and the accused had attended, together with their partners, which was principally a fundraising function for another person, whose husband was present and who is a detective.  The accused's wife is a police officer also.  After the alleged offending, the complainant returned home, but did not tell her husband.

10Between 1 and 5 December, the accused man telephoned the complainant, wanting to meet, and asking if she had told anyone, and I just make the point that that is equally consistent with his defence that any activity that took place was consensual.

11On 5 December, the complainant visited a friend and told her what she said had taken place a week earlier.  That friend booked a doctor's appointment, and also advised the complainant to go to CASA and to report to police.  The complainant indicated she did not want to do either of those things.

12On 8 December, however, the complainant did attend the doctor that had been arranged by her friend, and told her her allegation that she had been raped, and was also, again, recommended to report to police.

13On 9 December, the complainant told her boss, a principal at the primary school at which the complainant teaches, and was told that she must attend CASA.

14The complainant says in her statement that she did go to CASA and again was recommended to report to police, but it is unclear on the materials when that was.

15On 10 January 2015, the complainant saw the accused amongst their other friends and acquaintances at a music festival.  There was some phone contact by the accused to the complainant, and the complainant's husband became aware of this and told the accused to stop contacting his wife.

16In early June of 2015, the complainant told first her sister-in-law and later the same day, her husband, about "what had happened".  There was Facebook contact between the husband of the complainant and the accused, who had been friends up to that point, and again I simply make the comment that the messages received from the accused were again consistent with his defence.

17The complainant in her statement indicates that she saw one of the friends who had been present at the night of the fundraising, the night on which the alleged offences are said to have occurred, and paraphrasing, she seemed to form the view that he seemed to know what had taken place.  She “had had enough” and made an appointment with CASA.

18On 24 July, she said that she went to CASA and was recommended to speak to a police officer not connected with the accused's wife and friends.

19On 25 July, she said she telephoned the police and told them what had happened, and on 27 July police attended at her address and she made a statement.

20For completeness, on 31 July a record of interview was conducted, in which the position of the accused, as I have already outlined it, was stated.

21Having perused the depositions, I then viewed the file that had been returned on the subpoena.  As to the first basis on which the application is sought, it was put that whilst there was material in the depositions indicating the complainant's view as to why she went to the police after going to CASA, it was put that there may have been some other assertions beyond giving a name of a police officer not connected with the parties.  Having viewed the file, I can confirm that there are no other assertions noted, beyond the complainant taking the option to contact Owen Smeale.

22In respect of the second basis, as to the potential for a narrative being given on 24 July immediately before speaking to police the following day, I can indicate that there is no narrative given to the counsellor on 24 July.

23Therefore, I am not satisfied that the test is met.  It seems to me that the test fails on all three limbs, although it is not necessary to go through them all; if it fails one, it fails the test.  But I do note for completeness that I am not of the view, therefore, having described what I have, that the contents of the file would have substantial probative value, having regard to the other evidence that is available, which is apparent from the chronology.

24Further, there is other evidence available of a similar or greater probative value, that is not inconsistent with any material that might be obtained from a perusal of the file by having it produced to the parties, and the public interest in confidentiality being preserved is not outweighed by the public interest in releasing or admitting into evidence any material from the CASA file.

25There is, however, one further matter that was raised about the lack of clarity about the first attendance at CASA by the complainant.  Although leave will not be granted to produce the file, I think it is in the interests of justice that I advise the parties, and in the presence of counsel representing Gippsland CASA, that the file records a telephone call from the complainant to CASA on 9 December 2014, and an attendance at CASA by the complainant on 10 December 2014.

26It follows from what I have already said that there is nothing inconsistent in the file with the material the parties already have, in light of what I have already outlined from the depositions.

27So apart from that piece of information, the application is refused.

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