Director of Public Prosecutions v Stefanie Williams No. SCCRM 92/595 Judgment No. 4118 Number of Pages 9 Evidence

[1993] SASC 4118

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA DEBELLE J

CWDS
Evidence - Suppression order - Application for revocation - Whether order suppressing evidence in committal concerning the mental condition of the prisoner should be revoked - Conflict of opinion as to the mental condition of the prisoner - Whether publication would impair the future treatment of the prisoner - Relevant principles - Application refused. Application to have evidence made available for inspection - Psychiatric assessments of prisoner and videotape of the circumstances of the offence - Relevant principles - Balancing breach of medical confidence with public interest - As to video tape, the paramount interest is that of the victim - Applications refused. Supreme Court Act 1935, s.131 and Evidence Act 1929, s.69a.

HRNG ADELAIDE, 13 August 1993 #DATE 13:8:1993
Counsel for applicant Television Broadcasters Ltd:   Mr A Harris
Solicitors for applicant Television Broadcasters Ltd:   Fisher Jeffries
Counsel for applicant David Syme and Co:   Mr P Campbell
Solicitors for applicant David Syme and Co:   Baker O'Loughlin
Counsel for applicant SA Telecasters Ltd:  Mr N Swan
Solicitors for applicant SA Telecasters Ltd:  Finlaysons
Counsel for respondent DPP:         Ms G Davison
Solicitors for respondent DPP:        Director of Public
  Prosecutions
Counsel for respondent Williams:     Ms M Shaw
Solicitors for respondent Williams: Mr G Mcgee

ORDER
Applications refused.

JUDGE1 DEBELLE J I have before me a number of applications. First, there are applications to revoke suppression orders which were made in the course of the committal proceedings. They are the following orders:
    (1) an order made by Mr Gurry SM on 14 August 1991;
    (2) the order made by Mr Prescott SM on 13 January 1992;
    (3) an order made by Mr Prescott SM on 22 January 1992; and
    (4) an order which was upheld on appeal by Olsson J on 22
January 1992. 2. There is also an application under s.131 of the Supreme Court Act to make available for inspection by the applicants four reports of psychiatrists concerning the prisoner tendered in the course of the sentencing submissions, and the videotape made on 23 July 1991, which records the events of the third count to which the accused pleaded guilty. These applications are made by three media interests, Television Broadcasters Limited, David Syme and Co. Limited, and South Australian Telecasters Limited. 3. I deal first with the suppression orders. The order made by Mr Gurry SM on 14 August 1991 was to suppress from publication until further order the address of the prisoner's mother, and submissions received from the prosecution and counsel for the defence surrounding the commission of the offence, those submissions being made on 7 August 1991. Counsel for the applicants expressly disavow any application in respect of the order so far as it relates to the address of the prisoner's mother. The application in relation to the suppression order made on that date relates only to the submissions made surrounding the circumstances of the commission of the offence. 4. The order made by Mr Prescott SM on 13 January 1992 ordered suppression of the publication of the Crown allegations concerning evidence to be led from Dr Jureidini or Dr Southall in so far as it relates to the prisoner's mental state, and to the description of her condition as apparently expressed by Dr Jureidini as being Munchausen's Syndrome by Proxy. The order also forbad publication of allegations of the Crown as they relate to both counts 1 and 2. 5. The order made by Mr Prescott on 22 January 1992, and the order made by Olsson J, related to the evidence of a witness named Melody Brecknell and part of the evidence of Dr Burnell. 6. The nature of the material, the subject of these suppression orders, falls into two categories. One category might be said to be evidence of events and submissions relating to events concerning the commission of these offences. The other part relates to evidence concerning the psychiatric condition of the prisoner. I think that different factors fall for consideration in relation to each of those two classes of evidence. 7. The evidence concerning the events surrounding the commission of these offences and the submissions in relation to them is material which does not, in my view, attract any requirement for further suppression. The prisoner has pleaded guilty. That evidence relates to matters of fact and there cannot, therefore, be any further justification for continuing the suppression of that material. 8. Different factors, however, fall for consideration in relation to the evidence concerning her psychiatric condition. 9. There seemed to me to be a number of matters which should be considered. First, this is evidence of the mental state of the prisoner. The evidence given by Dr Jureidini and Dr Southall included an assessment of her mental state and conclusions by them as to the nature of her condition from which she was said to be suffering. Dr Jureidini is a psychiatrist. He gave evidence that the prisoner is suffering from Munchausen's Syndrome by Proxy. 10. Dr Southall is a pediatrician. Indeed, the evidence discloses that Dr Southall is a very distinguished pediatrician. Furthermore, the evidence suggests that he has done a considerable amount of work in relation to children who have died from alleged attacks of apnoea. The evidence of Dr Southall as to the mental state of the prisoner cannot be said to be expert evidence in that field. He has no training or qualification in the area of the psychiatry. At best, and with all respect to Dr Southall, it can be said that his is a lay view, albeit perhaps a well informed view. 11. The prisoner was seen later by two psychiatrists, Dr Skinner and Dr Hawker. Dr Hawker does not proffer any diagnosis of the mental condition of the prisoner. Dr Skinner said that it was difficult to make a diagnosis. She said that there was no evidence of significant depressive or other psychiatric illness. She believed the most likely diagnosis to be that the prisoner suffers from an impulse control disorder. Dr Skinner's report does not mention the syndrome called Munchausen's Syndrome by Proxy. 12. The prisoner is still undergoing psychotherapy. Both Dr Skinner and Dr Hawker referred to the need for that psychotherapy to continue. During the period in which the prisoner will be in custody, psychotherapy will be available to her. Given the nature of the condition, it is likely that the psychotherapy will have to continue after her release. Indeed, I hope it does. All of this points to two things. First, it discloses that there is room for difference of opinion as to the nature of the condition, if any, from which the prisoner suffers. Secondly, it suggests to me that there is a need for care to be taken in relation to the publication of this material so as not adversely to affect the future treatment of the prisoner. The prisoner has been sentenced and will serve her punishment. Care must be taken to ensure that the punishment, which has been administered to her, does not assume an unintended dimension or is in some other way aggravated. 13. There is another factor which pertains to this evidence. When the prisoner was initially seen by Dr Jureidini, it was, at least in part, for the purpose of advising and counselling her. She consulted him as a medical practitioner. There may, therefore, have been considerable doubt as to the extent to which, if at all, the evidence of Dr Jureidini could have been led. 14. The evidence given at the committal by Dr Jureidini was received de bene esse. Further, the conclusions reached by Dr Jureidini as to the psychological condition of the prisoner was founded, at least in part, on conclusions he had drawn concerning the deaths of the two children - Stacey and Vanessa - as well as the events concerning the child Renee. So far as the death of the child Vanessa is concerned, the Crown entered a nolle prosequi, so that part of the basis of Dr Jureidini's reasoning is removed or, at least, extensively qualified. These are reasons why Dr Jureidini's evidence should not, in the interests and administration of justice, be published. 15. I think, therefore, that given the debate as to whether the prisoner is suffering some psychiatric disorder and, if she is, the nature of that disorder, one must conclude that publication of Dr Jureidini's evidence would be likely to cause mischief, at least so far as the future treatment of this prisoner is concerned. 16. There is a further reason why the evidence of Dr Jureidini should not be published. The evidence of Dr Jureidini proceeds, in part at least, on information he obtained from the prisoner in the course of what she believed to be a medical examination. The prisoner would, therefore, have disclosed to Dr Jureidini information which she believed to be the subject of a medical confidence. From a practical point of view, it would be difficult to segregate the information imparted in confidence from Dr Jureidini's assessment. The fact that the prisoner imparted information believing that it would be treated as confidential is, for reasons I will give later, a matter to which weight should also be attached. 17. Mr Harris, who appeared for Television Broadcasters Ltd, said that the public interest required that this information, or that information concerning the mental condition of the prisoner, should be published. In this submission, he was joined by Mr Swan, who appeared for South Australian Telecasters Ltd and by Mr Campbell, who appeared for David Syme and Co Ltd. 18. The gravamen of their argument was that the offences to which the prisoner has pleaded guilty are such an affront to the normality of human behaviour and, in particular, the normal behaviour of a mother, that it is proper that anything relating to those matters - and, in particular, the mental condition of the mother - should be published. This, it was said, would enable proper public debate concerning those kinds of issues. 19. I do not think that the course of public debate will be assisted by the publication of that material. It is to be noted that there is at least some debate as between the psychiatrists who have reported in this matter and Dr Jureidini's conclusions are based, at least in part, on a premise which may not now be sustainable. 20. While I appreciate that it might be said that the very fact that the psychiatrists involved in this case are, themselves, engaging in a debate as to the nature, if any, of the mental condition of the prisoner, I cannot see how the wider public debate will be served by the publication of this material. It might be that medical research and, in particular, psychiatric research will be assisted by access to the report, but that is not the basis upon which any of these applications are, in truth, founded. 21. I turn to the applications under s.131 of the Supreme Court Act and deal first with the application to make available for inspection the four reports, two of which were prepared by Dr Hawker and two of which were prepared by Dr Skinner. 22. The prisoner has consulted both Dr Skinner and Dr Hawker in their capacity as psychiatrists and for the purpose of being advised and treated by them. As I have said, she is currently undergoing a course of psychotherapy with Dr Hawker. On any view of the matter, the prisoner consulted them and imparted to them confidences for the purpose of being advised and treated by them. The four reports are summaries of many consultations with two medical practitioners. They contain a resume of treatment, matters discussed in the course of treatment, and an assessment of the desired future treatment. Some aspects of those reports have been referred to in the course of my sentencing remarks, but only to a limited extent, and in a way which does not disclose the contents of those reports. The reports include information imparted in confidence to her medical advisers. 23. The reports contain some hearsay material. That is not said critically. The very nature of the exercise engaged in by the psychiatrists will be likely to result in the recounting of hearsay material. That hearsay material may include comments on third parties which may not be true, and which, if published, might harm their reputation, or cause some other unnecessary damage. That is one reason why I think the reports should not be made available for inspection. 24. Further, and I think more importantly, there is a need to protect the confidence reposed by the prisoner in both Dr Skinner and Dr Hawker. The relationship of doctor and patient is one which requires a considerable degree of trust and confidence. Proper diagnosis and treatment, in part, depends upon the patient being able to make a full and frank disclosure of all aspects of his or her medical history. This must be especially so in the case of psychiatric illness where the matters which might be affecting the patient's condition, be they true or imagined, would be imparted to the medical practitioner. The information given by the prisoner to these psychiatrists would plainly have been given in confidence, and in the expectation that the information would remain confidential, to be disclosed only with her consent. 25. The four medical reports were tendered only for the purpose of assisting in the determination of the appropriate sentence. To that extent there was a partial waiver of the confidentiality for that limited purpose. 26. I do not think that the public interest requires any further disclosure of that confidential information. One asks, what reasonable interest the public can have in such information? How is the administration of justice to be advanced by that information being made available? I do not think the applicants provide any satisfactory answer to those questions. 27. Confidential information, of different kinds, frequently comes before the court. The court is frequently asked to determine the extent to which, if at all, the confidence should be maintained. Sometimes confidential information is disclosed to other parties, on a limited basis, designed to preserve and protect the confidence. A number of examples might be given. One which most immediately comes to mind is confidential financial information. Another concerns information or evidence relating to commercial trade secrets. 28. Sometimes it is necessary for information of that kind to be disclosed to the other party to ensure that the other party has a proper opportunity of testing and probing that evidence, so that the court may safely act upon it. But the waiver of the confidence in that limited way does not necessarily call for the publication of that material. The court will always judge whether, at the end of th day, it is appropriate for that information to be published. Different considerations will affect different kinds of confidences. Mr Harris referred to the decision of the Full Court in State Bank of South Australia v. Hellaby (unreported, 8 October 1992, Judgment No. 3686). The issues involved in that decision are quite different and have no application here. 29. The application now being made calls for an assessment to be made by the court whether it is appropriate, in all the circumstances, for the confidence reposed in these medical practitioners to be, at least in part, breached to the extent that these reports are to be made available for inspection. I have little doubt that, if they were made available for inspection those who inspected them would publish that which they thought appropriate to publish. There would be little point in this application if that were not so. 30. I do not think that the publication of this material is required in the public interest. There are countervailing interests to consider. There is, of course, the public interest in open justice. There is, of course, the public interest in the freedom of the press. There is also the public interest of the proper preservation of medical confidences. There is the private interest in the question whether it is necessary and desirable, as part of the continuing treatment of the prisoner, that these reports not be available for inspection. 31. An order refusing inspection of this material does not, I think, inhibit the fundamental principle of open justice and it, therefore, follows that it does not inhibit the freedom of the press, for the freedom of the press is, in this context, simply the freedom to publish what happens in open court. The principle of open justice is not infringed by the preserving of confidence, particularly where, as here, there are two countervailing parties, that is to say, the Director of Public Prosecutions and counsel for the defence. 32. If one party in this case, the Director of Public Prosecutions, thought it necessary to challenge in open court some or all of the material upon which the defence relies, the Director could have done so. The Director, instead, believed as best I understand the position put forward by Ms Davison, that there is no impairment of the principle of open justice by maintaining the confidence. Indeed, the observations I have made already, as to the other contexts in which the court will, in an appropriate case, preserve confidence, indicate that it is no inhibition upon open justice to preserve the confidence. 33. At the end of the day, the court carefully weighs the questions as to the extent to which, if at all, a confidence is to be protected and, indeed, as the very fact of these reasons demonstrates, the court will explain the reasons why the order has been made. That, in itself, is a recognition of the principle of open justice. 34. The discretion which is vested in the court by s.131 is a very wide one but, like all discretions, it will not be exercised for any arbitrary reason, but will be exercised judicially. The court will determine, in the particular circumstances of each case, what, if anything, should be disclosed. Nothing has been said which, in my view, satisfies me that the subject of the four reports should be made available. 35. I turn to the video tape made on 23 July 1991 at the Adelaide Childrens Hospital. Here, I think, quite different factors fall for consideration. It is the interests of the child, Renee, which I think are paramount. This child has, for understandable reasons, been taken from her mother and is in foster care. The child is, of course, still very young. She is only just over two years old. The child's name has been published, as has the name of the prisoner. As I understand the position the child still bears its given name. 36. The purpose of seeking to inspect the video tape is, of course, to enable later publication. That has been acknowledged by counsel for all three applicants. The publication will be of such part, or the whole of the video tape, as each applicant wishes. 37. As Ms Davison, who appeared for the Director of Public Prosecutions pointed out, once the video tape has been made available for inspection there is no control upon the showing of the material, how often it is shown, how frequently it is shown, or of the number of occasions when it is shown. There is a potential risk, as Mr Harris acknowledged, of undue hardship to the child, the victim of this crime, if there is some later publication at a time when the child is able to comprehend and understand what is being shown. The film might be published when the child is quite young, and thus have a very distressing, and perhaps traumatic effect upon her. It might be shown at an occasion when the child has not, in any way, been prepared for what she is about to see. It might be shown in circumstances in which the child could readily identify the baby in the film as herself. 38. It does not require anything other than an exercise in ordinary commonsense to appreciate that that could have a devastating affect upon the child. Any ordinary understanding and sympathy with the emotions and condition of one's fellow human being would readily lead anyone, including, dare I say, the applicants to understand what the possible effect of that might be upon the child. 39. The application which is made calls, of course, for a balancing of the public interest against the private interests of this child. That balancing, in my view, can have but only one answer. The application therefore in respect of the video tape is therefore refused. 40. I turn to the letter from Family and Community Services. Lest there be any doubt about it, I simply indicate that nothing that has been said in the course of these remarks prevents an inspection of a report from that service addressed to me and dated 6 July 1993. I emphasise the need for fair and accurate reporting. I think that deals with all of the matters which were raised. 41. There will be orders therefore as follows:

     1. The order made by Mr Gurry SM on 14 August 1991 is
    varied to the extent that that part of the order which suppresses
    from publication submissions received from the prosecution and Mr
    McGee as to the alleged circumstances showing the commission of
    the offence, those submissions being made on 7 August 1991, is
    revoked. In all other respects the order remains in force.
     2. The order made by Mr Prescott SM on 13 January 1992 is
    varied to the extent that that part of the order which forbids
    publication of allegation of the Crown as they relate to both
    counts 1 and 2 in their entirety is revoked. In all other
    respects the order remains in full force and effect and will
    continue.
     3. The order made by Mr Prescott SM on 22 January 1992 is
    revoked.
     4. The order made by Olsson J on 22 January 1992 which refers
    to portion of transcript on pp.209, 212 of the committal
    proceedings is also revoked.
5. There will be an order pursuant to s.131 of the Supreme
    Court Act that the video tape made on 23 July 1991 will not be
    available for inspection.
6. There will be an order pursuant to s.131 of the Supreme
    Court Act that the medical reports of Dr Elaine Skinner dated 13
    January 1993 and 31 May 1993 be not made available for inspection.
7. There will be a further order pursuant to s.131 of the
    Supreme Court Act that the reports of Dr Fiona Hawker dated 23
    November 1992 and 19 May 1993 not be available for inspection. 42. Is there anything else? MR HARRIS: There are two matters I would like to raise. First was the order you made at the start in relation to my submissions I don't understand you have made anything to deal with that. Secondly, I do it now, would your Honour be prepared to order, because I understand we can't access it without your Honour's order, that a transcript of the argument 14 and your Honour's ruling be made available to the parties upon payment of the appropriate fee. HIS HONOUR: Have you any view Ms Davison, Mrs Shaw as to revocation of the suppression order I made earlier this morning relating to what was said today? MS DAVISON: It's my view that that order should remain. There were a number of things said by Mr Harris including a number of medical opinions that he purported to give in respect of Munchausen's Syndrome by Proxy that have not been substantiated in any way within these courts and are the subject of argument, and I have grave concerns about those matters being published, and thereby, in effect, taking away the effect of your Honour's orders in respect of the earlier matters. HIS HONOUR: I needn't hear you Mrs Shaw. Earlier this morning I made an interim suppression order relating to the submissions to be made by counsel. I revoke that order to this extent only. There can be reporting of the submissions made by counsel save the reporting should not refer to any diagnosis or suggested diagnosis of the mental condition of the prisoner or contain any material which would in any way identify either a condition or an alleged condition. 43. I add this in the hope that it makes what I said a little clearer, there was argument as to the nature, if any, of a mental condition suffered by the prisoner. There can be no suggestion or any statement as to the nature of that condition. That gives effect to the points you were making Ms Davison. 44. I order to the extent which is necessary that the parties can have access to the transcript. 45. I reserve the right to edit the reasons which I have given ex tempore.