Director of Public Prosecutions v Schulz
[2018] VCC 127
•13 February 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-01681
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL SCHULZ |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 February 2018 | |
DATE OF RULING: | 13 February 2018 | |
CASE MAY BE CITED AS: | DPP v Schulz | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 127 | |
RULING
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Subject:
Catchwords:
Legislation Cited: Evidence (Miscellaneous Provisions) Act 1958 (the Act)
Cases Cited:
Ruling:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr N. Batten | Office of Public Prosecutions |
| For the Respondent | Ms S. Keating | Aitken Lawyers |
| For the CASA and Royal Children’s Hospital | Ms D. Foy | Health Legal |
HER HONOUR:
1 The accused, Michael Schulz, in this case is before the Court on Indictment H10119910A.1 charged with one charge of grooming for sexual conduct with a child under 16, two charges of indecent act with a child under 16, seven charges of sexual penetration of a child under 16 and one charge of possession of child pornography. These offences are alleged to have occurred between 18 September 2015 and 1 January 2017. The complainant is NG.
2 The issues in this trial will be whether or not the acts alleged in each of the charges occurred. The defence is a denial of any such acts.
3 This is an application on behalf of the accused to produce evidence of confidential communications, that is, release same for inspection. Subpoenas were issued by leave given by her Honour Judge Quin and made returnable on 5 February 2018. The documents have been produced to the Court in response to the subpoena, pursuant to s32C(6) Evidence (Miscellaneous Provisions) Act 1958 (the Act).
4 There were three subpoenas before me for consideration, one to the Centre Against Sexual Assault Loddon Region (CASA), one to the Royal Children’s Hospital, and another to Ms Tiffani Clingin.
5 Ms Foy appeared to represent the Royal Children’s Hospital and CASA (Loddon Campaspe region) to oppose production of the material sought. Ms Foy made submissions and also tendered two affidavits, one from Sandra Leenstra, CASA and the other from Richard Haslam, Royal Children’s Hospital.
6 Counsel for the applicant, Ms Keating, submitted leave should be granted to produce the material sought, in brief, as the mental health of the complainant upon whose credibility or reliability the prosecution case relied was a matter she wished to explore, in particular, any impact of the complainant’s mental health relevant to the alleged offending on the Indictment.
7 Ms Keating submitted the material sought would, either by itself or with other evidence, have substantial probative value to a fact in issue in the trial. That other evidence of similar or greater probative value which was not a protected communication was not available, and that the public interest in preserving confidentiality was substantially outweighed by the public interest in admitting evidence of substantial probative value (s32D of the Act).
8 Regarding Ms Clingin. Ms Keating understood the complainant had seen Ms Clingin in 2016, ie: proximate to these allegations. That material, she urged, could bear upon the complainant’s state of mind.
9 Ms Keating referred to defence interest regarding NG’s complaints of two other sexual allegations, one in 2015 and another in 2016. I discussed with her the decision of LAL v The Queen[1]. Ms Keating submitted that in respect of both of those other allegations in 2015 and 2016, there was evidence of deteriorating mental ill health of the complainant which ultimately led to her hospitalisation on New Year’s Eve 2016/17. Ms Keating submitted the state of mind of NG at the time she made her earlier (and other) allegations in both 2015 and 2016, from the material currently available, indicated escalating problems in terms of NG’s ‘cutting behaviour’ and mood.
[1] [2011] VSCA 111
10 Ms Keating also sought to explore whether there was any emotional conflict relating to NG’s biological mother and NG which might have impacted upon her mood at the time of the allegations. Those matters would, she urged, provide context in relation to the continued association between NG and the accused over the relevant period of time. Ms Keating submitted it would also be relevant to know in relation to any previous diagnosis of depression how that might have affected NG’s judgement, and capacity to think clearly.
11 The same submissions were made in relation to each of the applications before me.
12 Regarding the Royal Children’s Hospital, Ms Keating understood the complainant was treated throughout 2016, including on 31 December 2016.
13 Ms Keating further submitted there were two further aspects of the evidence relevant to her submissions found in the depositions in relation to the 2015 and 2016 allegations and notes prepared by Officer Naughton, who had spoken to NG’s mother on 31 December 2016. The mother had made a reference to the complainant making up stories to get attention.
14 Ms Keating submitted it was a combination of the mother’s reflections, together with NG’s mental health that made the material sought substantially probative.
15 Mr Batten submitted the application for the release of the documents should not be permitted in relation to any of the three subpoenas.
16 He submitted there were two “high hurdles” relevant to s32D of the Act, namely the need to establish that the evidence sought would have substantial probative value to a fact in issue in the trial. In that regard, he accepted credibility could, in some circumstances, meet that test. Secondly, that right was substantially outweighed by the public interest in preserving confidentiality. Mr Batten submitted that Ms Keating was engaging in a fishing expedition and that there was nothing of substantial probative value in the material sought to be obtained.
17 Mr Batten conceded it was accepted and clear in the depositions that NG had self-harmed, and such was a well-known fact. Also that NG had self-harmed over a period of time going back before these allegations, as well as at the time she went into hospital on New Year’s Eve 2016/2017.
18 Mr Batten submitted, however, there was nothing to indicate, whether diagnosed or not, that any depression she suffered would impact upon her capacity to give a proper and honest narrative of events relevant to the current allegations.
19 Mr Batten submitted there would need to be some link between any depression and impact that might have on these charges, for example, whether it caused her to tell lies about the allegations, or regarding NG’s capacity to accurately recollect events alleged.
20 Mr Batten conceded if there was something like that in the material regarding NG’s depression and, that as a result, NG told lies, or forgot things, or muddled things up, the defence would be entitled to any such material.
21 However, Mr Batten submitted on the material in the depositions, this was purely a fishing exercise to trawl through medical records to see if there might be anything in there. There was no reason, he submitted, to suppose there would be such material.
22 Mr Batten submitted that the allegation in relation to the rape of 2015 was directly relevant to the decision of LAL and material relevant to that should not be produced.
23 Mr Batten addressed me regarding the 2015 incident which NG apparently did not pursue. He submitted that to be relevant to NG’s credit there needed to be some basis for asserting it was a false allegation, and there was no evidentiary support for that. Again, he submitted that was a fishing expedition.
24 Mr Batten assured the Court there was no suggestion regarding the 2015 matter there had not been any retraction of her allegation (T21–22).
25 Reference was also made to an earlier allegation involving the accused’s son, Morgan. Mr Batten advised the Court there had not been any retraction by the complainant of her allegation of sexual penetration relevant to Morgan rather, the charge did not proceed, nevertheless did proceed in relation to a child pornography charge which involved the complainant and Morgan.
26 Specifically regarding the 2016/2017 incident of self-harm, Mr Batten conceded should there be anything which indicated, at that time, that the complainant was confused about what happened as a result of depression, or if changing her story in relation to her allegations involving the accused, the defence would be entitled to that. There was, however, no evidence on the material which would link depression to unreliability of this complainant.
27 Mr Batten submitted that this was a child fostered out at a young age who undoubtedly would have had issues relating to her childhood and background.
28 Mr Batten accepted mental health in appropriate cases could be a relevant consideration. In that regard, I discussed with Mr Batten the decision of LAL.
29 Mr Batten submitted I should give alleged observations by the complainant’s mother very little weight. That her opinion as to general propositions whether her daughter was attention-seeking or made up stories had nothing to do with the kind of allegations made in this case. That there was no evidence to suggest she was talking about anything of the kind relating to this case, rather were simply observations in a general way to police of a parent about a teenage girl.
30 Mr Batten stated he did not have instructions regarding the attitude of the complainant to disclosure of any of the material sought.
31 Ms Foy provided two subpoenas to the Court, one from Dr Richard Haslam, Director of Mental Health Royal Children’s Hospital and one from team leader, Sandra Leenstra at CASA Loddon Campaspe Region.
32 Ms Foy also referred to LAL (paragraph 81) in her opposition to any documents being produced pursuant to those two subpoenas.
33 Further, she submitted, there was nothing to suggest the complainant had previously, and currently made false allegations in that material.
34 Ms Foy also referred to the decision Baker v The Queen[2] (paragraph 50).
[2] [2015] VSCA 323
35 In Baker the court confirmed:
“Assuming for present purposes that the credibility of the complainant is a fact in issue for these purposes, the test for leave still imposes a high hurdle.”
And further:
“Unfortunately there is nothing inherently remarkable in her claim to have been raped by two people, nor unhappily, is it impossible that SK( who was the complainant in that case), may have been abducted by an offender or offenders who tortured, raped and killed another girl.”
36 The material sought, Ms Foy submitted, lacked substantial probative value.
37 Further, Ms Foy referred to Baker (paragraph 51):
“It may be accepted that the leading of evidence about the statements in the notes could have led to a successful attack on SK’s credibility but this Court, like the trial judge, could do no more than speculate in that regard.”
38 Ms Foy submitted what the court in Baker was saying was that any suggestion of falsity, or otherwise, regarding the truth of previous allegations was only speculative and, therefore, would not meet the test of having substantial probative value.
39 Ms Foy submitted the allegations regarding the 2015 incident, consistent with LAL and Baker, were irrelevant.
40 Specifically regarding the CASA material, Ms Foy submitted from the material, any diagnosis of mental ill health, including depression, would not be found within the CASA records (which she had read).
41 Details of any self-harm by the complainant in 2015 and 2016, Ms Foy submitted, was irrelevant to the central facts in issue in this trial, being whether or not the sexual offending involving the accused did or did not take place.
42 Ms Foy submitted regarding CASA, that the complainant was not attending CASA at the time of the alleged offending before this Court. That these charges “post-date” the period when NG was involved with CASA. Further, she submitted, in the material from CASA there was no formal diagnosis undertaken and no medications prescribed by CASA. There was, therefore, no substantial probative value in inspecting/or producing the CASA notes.
43 Ms Keating accepted the notes predated this current alleged offending.
44 Regarding the Royal Children’s Hospital, Ms Foy referred to two attendances by the complainant in 2016, however, submitted there was nothing new in this material, as all parties already knew from the depositions NG had a diagnosis of depression and that she was a self-harming young woman.
45 The complainant, she submitted, from those records was never at the Royal Children’s Hospital in 2015. Ms Foy noted what was being sought from the hospital was material relevant to her attendance on 31 December 2016 and submitted such material was also already available in the depositions.
46 From the Hospital records, as I discussed with Ms Foy, there appeared to be nothing to suggest any form of thought disorder, delusions or altered thought processes, or of NG being affected by irrationality or hallucinations, or things like that. Ms Foy submitted any such reports were hearsay and did not have significant probative value.
47 Ms Clingin did not attend Court on 5 February 2018, however indicated in writing her objection to inspection of her notes. In her correspondence to the Court Ms Clingin stated she had not made a diagnosis of depression, or any other mental health condition, and nor did the complainant report any self-harm during her care.
48 Regarding Ms Clingin’s notes, Ms Keating had understood there was attendance with Ms Clingin which overlapped the period of the allegations. Upon inspection that was not to be the case, rather indicated attendances from March 2017.
49 I indicated to the parties I would be prepared to look at the material in relation to the Royal Children’s Hospital attendance, 31 December to January, referred to in the application and those of Ms Clingin.
50 The relevant test is found in s32D(1) of the Act, and is both restrictive and conjunctive. In deciding whether to grant leave, the Court must also have regard to the guiding principles (s32AB of the Act) and to the matter of s32D(2) of the Act, which I have considered in light of the submissions.
51 I have carefully considered the submissions of all counsel and the authorities to which I have been referred.
52 I turn to the notes provided by Ms Clingin, who saw NG from March 2017. I have read that material and have determined none of that leave should be given to produce that material. Whilst I am not permitted to say what is in those documents, I can say what is not. There are no details contained within her notes of any formal diagnosis regarding the complainant made by her at the time of these allegations. There is no reference to any retraction or qualification of her allegations in relation to the accused.
53 No reference was made to the 2015 allegations. There has not been any reference of self-harm since December 2016/17. Ms Clingin, in her correspondence to the Court, stated that whilst the complainant exhibited some symptoms of Post-Traumatic Stress Disorder (PTSD) in 2017, she had not formally made a diagnosis of depression or any other mental health condition.
54 In my opinion, the notes do not have substantial probative value to a fact in issue in this trial.
55 Further, there is evidence of similar, if not greater, probative value concerning the matters to which the protected evidence relates available within the depositions.
56 Further, it is in the public interest to preserve the confidentiality of confidential communications, and in this regard I note the letter to the Court from Ms Clingin opposing production.
57 This material is not to be produced.
58 In relation to the CASA matter, the complainant’s attendance pre-dates the allegations involving this accused and, in my opinion, that material does not have substantial probative value to a fact in issue and should not be released.
59 I can say there was no reference to any retraction or suggestion the complainant had misrepresented or lied about her allegations regarding the accused, or any other sexual assault, nor any definition of her depression, specifically regarding the extent or analysis of it.
60 I turn to the Royal Children’s Hospital and the requested material from 31 December 2016 and 23 January 2017.
61 In my opinion, the notes do not have substantial probative value to a fact in issue in this trial.
62 Further, there is evidence of a similar, if not greater, probative value concerning the matters to which the protected evidence relates available within the depositions.
63 Further, it is in the public interest to preserve the confidentiality of confidential communications, and in this regard I note the affidavit of Richard Haslan opposing production.
64 I do, however, grant leave to produce some of that material which in part provides reasons for NG ‘cutting’ on New Year’s Eve.
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