Director of Public Prosecutions v Sheridan (a pseudonym) (No 4)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	DPP v Sheridan (a pseudonym) (No 4)
Citation:	[2025] ACTSC 61
Hearing Dates:	24 February 2025 – 26 February 2025
Decision Date:	27 February 2025
Before:	Baker J
Decision:	See [43]
Catchwords:	CRIMINAL LAW – application for disclosure of protected confidences – accused seeking complainant’s health records to confirm if complainant received diagnoses of mental illnesses by a medical practitioner – documents produced on subpoena by Canberra Health Services did not fall within this description – redacted note from complainant’s general practitioner disclosed – comments made about “frustratingly opaque” provisions of the EMP Act
Legislation Cited:	Crimes Act1900 (ACT), ss 28(2)(a), 53(1), 54(1) Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 79A, 79D, s 79E, 79G, 79H, 79IA
Cases Cited:	BJT v Australian Capital Territory [2025] ACTSC 69 DPP v Sheridan (a pseudonym) (No 2) [2025] ACTSC 56 Stanley (a pseudonym) v Commonwealth of Australia [2023] ACTSC 157; 378 FLR 210
Parties:	Director of Public Prosecutions ( Crown) Steve Sheridan (a pseudonym) ( Accused)
Representation:	Counsel S Saikal-Skea ( Crown) S Jerome ( Offender)
Solicitors ACT Director of Public Prosecutions Hugo Law Group ( Accused)
File Number:	SCC 52 of 2024

BAKER J:

EDITED EX TEMPORE REASONS

Overview

Steve Sheridan (a pseudonym), the accused, has been charged with the following offences:
(i)one count of choking, suffocating, or strangling, contrary to s 28(2)(a) of the Crimes Act1900 (ACT);
(ii)one count of sexual assault in the third degree, contrary to s 53(1) of the Crimes Act; and
(iii)six counts of sexual intercourse without consent, contrary to s 54(1) of the Crimes Act.
The accused’s trial commenced on Monday 24 February 2025 before a jury of twelve presided over by myself.
On the first day of the trial, I granted the accused leave to file an application seeking disclosure of protected confidences in documents produced by Canberra Health Services. Yesterday, I granted the accused leave to file a further application seeking disclosure of protected confidences in an entry made by the complainant’s general practitioner which was in the possession of the Officer in Charge of the Investigation (the GP note).
For the following reasons, I determined that leave should be granted to permit disclosure of a redacted form of the GP note to the prosecution and the accused. I otherwise declined to grant leave for the disclosure of the remainder of the protected confidences.

Legislation

It is convenient to briefly outline the terms of the legislation before turning to the particular applications in the present case.
The regime established for the protection of counselling records in cases of sexual and family violence offending by the EMP Act was helpfully summarised by McCallum CJ in Stanley (a pseudonym) v Commonwealth of Australia [2023] ACTSC 157; 378 FLR 210.
In brief, the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMP Act) creates a qualified immunity for protected confidences, which are broadly defined in s 79A of the EMP Act to mean “a counselling communication made by, to or about a person against whom a sexual offence or family violence offence was, or is alleged to have been, committed (the counselled person)”.
“Counselling communication” is in turn broadly defined to include:
a communication made in circumstances that give rise to a reasonable expectation of confidentiality or a duty of confidentiality—
(a) by the counselled person to a counsellor for the purpose, or in the course, of the counselling relationship between the counselled person and the counsellor; or
(b) to or about the counselled person by the counsellor for the purpose, or in the course, of the counselling relationship between the counselled person and the counsellor; or
…
Counselling communications also include various communications made by and to third parties for the purpose of, or in the course of, the counselling relationship.
The terms “counselling” and “counsellor” are also broadly defined. “Counselling” means “counselling, therapy or treatment for an emotional or psychological condition, whether or not the counselling, therapy or treatment is provided for remuneration”; and a “counsellor” is a person who “(a) has undertaken training or study, or has experience, relevant to the process of counselling people who have suffered harm; or (b) is supervised by someone to whom paragraph (a) applies”.
Importantly, a “counselling communication” is a protected confidence even if the communication is made before the happening, or alleged happening, of the acts constituting the sexual offence or family violence offence, and even if “it is not made in relation to (i) the sexual offence or any sexual offence; or (ii) a condition arising from the sexual offence or any sexual offence; or (iii) the family violence offence or any family violence offence; or (iv) a condition arising from the family violence offence or any family violence offence”. In other words, although these provisions of the EMP Act only apply in proceedings relating to sexual or family violence offences (see s 79A, extracted at [7] above), in such proceedings, the qualified immunity will apply to all counselling communications, whether or not the counselling related to sexual or family violence proceedings.
As McCallum CJ explained at [17] – [25] of Stanley, the EMP Act requires a separate grant of leave at three different stages, relating to three different forms of disclosure:
(i)First, a grant of leave is required in order for the Court to compel the production of documents to the Court:
(ii)Second, a further grant of leave is required in order for the Court to permit the parties to access the documents produced (that is, leave to inspect and make use of the documents); and
(iii)Third, a grant of leave is required before the documents may be admitted in the proceedings: s 79D(3)(b) of the EMP Act.
Whilst the EMP Act makes this much clear, other aspects of the legislation are frustratingly opaque. For example, although the legislation clearly requires the grant of leave at each of the stages referred to above, the only express power to grant leave is contained in s 79H, which applies after the Court has conducted preliminary inspection, and hence does not authorise a grant of leave at stages (i) or (iii) above. Rather, the power to grant leave at these stages must be implied.

Background

A summary of the cases of the prosecution and the accused are set out in DPP v Sheridan (a pseudonym) (No 2) [2025] ACTSC 56 at [5] – [12].
As outlined in Sheridan (No 2), prior to the commencement of the trial, the prosecution disclosed diary entries of the complainant which contain her account of the alleged offending.
Those diary entries included entries in which the complainant mentioned that she suffers from Bipolar Disorder and Borderline Personality Disorder. One of the complaint witnesses also recalls that the complainant said that she was suffering from mania at the time of the alleged offending.
On 18 December 2024, the accused’s counsel issued a subpoena to Canberra Health Services seeking:
In relation to [the complainant], copies of any documents (electronic or otherwise), notes, and/or records detailing any admission or attendance at, any mental health facility between 1 October 2018 and 30 November 2024, including but not limited to:
a.Any diagnosis for any mental health illness,
b.Treatment sought and/or undertaken, and
c.Duration of any admission.
An application was made to set aside that subpoena. That application came before McCallum CJ on 10 and 11 February 2025. At that hearing, it was agreed that the subpoena should be narrowed to “copies of any documents (electronic or otherwise), and/or records detailing any admission, or attendance at, any mental facility between 15 November 2018 to 14 December 2018”.
Canberra Health Services subsequently produced documents in response to the subpoena on 19 February 2025. The Women’s Legal Centre, who appears for the complainant, was granted first access to the documents produced.
On 19 February 2025, my chambers received an email from the Women’s Legal Centre which advised that the documents produced by Canberra Health Services contained protected confidences within the meaning of s 79A of the EMP Act.
The matter came before me on 21 February 2025. It was agreed that the appropriate course was for the Women’s Legal Centre to tab the documents which had been identified as protected confidences. I then independently reviewed the documents and redacted those portions which I was satisfied contained protected confidences.
The parties were provided with the redacted Canberra Health documents on the morning of 24 February 2025. The jury was empanelled, but was then released for the remainder of the day to enable legal rulings to be made on issues which would affect the accused’s opening address. Those matters required a longer time to resolve than was first anticipated. As a result, the jury did not reconvene until 26 February 2025.
Following receipt of the redacted documents, counsel for the accused sought leave to file an application in Court seeking disclosure of the protected confidences in the documents produced by Canberra Health Services.
As outlined above, a grant of leave was required before documents containing protected confidences were produced to the Court. Counsel for the accused indicated that the documents were sought to determine whether the complainant had been diagnosed with the mental illnesses which she described in her diary at the time of the offending. Given the breadth of the scope of the EMP Act referred to above, any communication by, or about, the complainant, in connection with her mental health would be likely to raise issues concerning protected confidences. In these circumstances, it was clear that the documents sought would have contained protected confidences. In these circumstances, the accused should have filed an application for disclosure of the protected confidences to the Court before issuing the subpoena.
For this reason, it was necessary for the accused to seek leave, nunc pro tunc, for the retrospective grant of leave permitting the disclosure of the protected confidences to the Court. That grant of leave was opposed by the prosecutor and the Women’s Legal Centre. In a short ex tempore decision delivered on 25 February 2025, I granted that leave. In brief my reasons were first, that I was satisfied that the accused had a legitimate forensic purpose for issuing the subpoena, and second, that the grant of leave would not unfairly prejudice the complainant or the prosecution, because the grant of leave would simply authorise the production that had already occurred, and each party would retain a right to be heard before any documents were disclosed to the prosecution and the accused.
Following the grant of that leave, I determined that it was necessary to conduct a preliminary examination under s 79G of the EMP Act. At that time, I had already seen the documents, having redacted them in accordance with the agreement of the parties for the purpose of disclosing documents which did not contain protected confidences. However, I closely reviewed the documents again for the purposes of this preliminary examination. I also received, and gave careful consideration to, a harm statement that was provided by the complainant pursuant to s 79G(3) of the EMP Act. In accordance with s 79G(6), I conducted the preliminary examination in the absence of the public, the jury, the parties and their legal representatives.
An important issue which underlay the accused’s application was the proposition that evidence that the complainant had Bipolar Disorder, Borderline Personality Disorder and/or mania at the time of the alleged offending would be relevant, and admissible in the proceedings. The prosecutor contended that the relevance of that evidence was slight, and was outweighed by the prejudice that would be occasioned to the prosecution if it were admitted. The accused contended that the evidence was important, and that any prejudice could be alleviated by directions. In the afternoon of 25 February 2025, I held that the mental health evidence was relevant. I provided ex tempore reasons for this conclusion the following morning: Sheridan (No 2).
Having so held, I asked the parties whether there was an alternate method of obtaining the information sought by the accused which would not involve disclosure of the complainant’s counselling records. Counsel for the accused confirmed that the only information that was sought in the protected confidences are documents which contain diagnoses by medical practitioners, rather than any self-reported information conveyed to Canberra Health Services by the complainant. In these circumstances, I asked whether the prosecution could simply ascertain whether the complainant had been diagnosed with any of the identified mental illnesses at a time proximate to the alleged offending.
The prosecution sought that information. The prosecution then informed the Court and counsel for the accused that the complainant had advised that she was first diagnosed with Bipolar II in January 2019, but that the complainant had not been diagnosed with mania or Borderline Personality Disorder at any time.
Counsel for the accused then indicated that this information was not such that she considered it appropriate to withdraw the protected confidence application. She noted that the complainant had described herself as having a “diagnosis” of Borderline Personality Disorder and mania in her diary. She said that it was necessary to ensure a fair trial that she have access to any documents which contained a diagnosis that was inconsistent with the information conveyed by the complainant. Counsel for the accused again confirmed that the only information sought in the protected confidence is evidence of diagnoses by medical practitioners, rather than self reported information conveyed to Canberra Health Services by the complainant.
Separately to these matters, on 26 February 2025, the officer-in-charge (OIC) advised the prosecutor that she had reviewed her prosecutorial obligations following my ruling the previous day. She had identified a document in the records produced by the complainant’s general practitioner which had previously only been disclosed to the accused in a redacted form. After becoming aware of my decision concerning the relevance of the complainant’s mental health conditions and medications, she felt obliged to disclose this document, but was unable to because it contained a protected confidence.
With the agreement of all parties, the document was brought into court by the OIC. Counsel for the accused called for the document and provided a written application under the EMP Act seeking “disclosure of that document”. With the consent of all parties, I granted the accused leave to file that application outside of the 14 day requirement of the EMP Act: ss 79E(3) and 79E(4). I then conducted a preliminary inspection of that document. Ms Corcoran, of the Women’s Legal Service, who appeared for the complainant, indicated that the complainant did not object to a redacted copy of that document being disclosed.

Determination

As outlined above, counsel for the accused has made clear that the only protected confidences sought to be disclosed are documents which contain diagnosis by a medical practitioner, rather than self reported information conveyed to Canberra Health Services by the complainant.
Having considered the criteria in s 79H of the EMP Act, I have formed the view that the public interest in ensuring that the accused person is given a fair trial outweighs the public interest in preserving the confidentiality of the protected confidence in respect of any document containing a diagnosis of bipolar disorder, borderline personality disorder or mania by a medical practitioner. This finding also extends to any document which indicates that a diagnosis for any of these conditions has not been made.
There are no documents which fall within this description in the documents produced by Canberra Health Services.
The GP document does contain information which falls within this description. I will grant leave for a copy, with protected confidences other than the evidence relating to the diagnosis redacted, to be disclosed to the parties.

Further observations

As outlined above, the provisions of the EMP Act concerning protected confidences are frustratingly opaque. Other judges of this Court have made similar observations concerning other problematic aspects of the legislation: see BJT v Australian Capital Territory [2025] ACTSC 69 at [13].
In addition to the difficulties referred to at paragraph [13] above, the legislation provides for a preliminary examination of the documents to be conducted by the trial judge. This is a difficult task, which sometimes involves the inspection of large volumes of material, including handwritten, and sometimes undecipherable, medical notes, by a judge who may not be in a position to fully appreciate where protected confidence issues arise at the time that the inspection is conducted.
As noted above, in the present case, I had the considerable assistance of the Women’s Legal Centre, who, with the agreement of the prosecution and the accused, were given first access to the documents produced on subpoena, and were in a position to identify the documents which raised protected confidence issues. Without their assistance, this trial may not have been able to proceed on the date listed.
Section 79IA of the EMP Act confers a right of appearance upon a counselled person. That right of appearance should extend to a right of first access to any document produced, so that any preliminary examination may be limited to the resolving any claim that is made on behalf of the counselled person.
For these reasons, I recommend that the Attorney General give consideration to amending the EMP Act to:
(i)expressly confer power on the Court to grant leave for the production of documents which may contain protected confidences;
(ii)expressly confer power on the Court to grant leave to use documents that have been found to contain protected confidences;
(iii)states that leave is not required to produce a document, inspect a document, or use a document that contain protected confidences if the counselled person consents to production, inspection and/or use of that document in the proceedings; and
(iv)provide a counselled person with a right of first access to any document produced following a grant of leave to produce documents.
For these reasons, I will direct that a copy of this judgment be sent to the Attorney General by the Registrar of this Court, for the legislature to consider clarifying the effect of these provisions.

Orders

For the above reasons, I made the following orders:
(1) I grant leave pursuant to s 79H of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) for a redacted copy of the GP note dated 20 September 2018 to be disclosed to the prosecution and the accused.
(2) A copy of this judgment is to be sent to the Attorney General by the Registrar of the Court, for the legislature to consider clarifying the effect of div 4.4.3 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT).

I certify that the preceding forty three [43] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker

Associate: A McKay

Date: 9 April 2025

[2025] ACTSC 61

27 February 2025