DPP and Briscoe
[2015] VCC 1393
•28 January 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-01949
| Director of Public Prosecutions |
| v |
| Timothy Briscoe |
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JUDGE: | Cannon | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 January 2015 | |
DATE OF RULING: | 28 January 2015 | |
CASE MAY BE CITED AS: | DPP and Briscoe | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1393 | |
REASONS FOR RULING
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Subject: CRIMINAL LAW
Catchwords: Ruling – Application pursuant to s.32C Evidence (Miscellaneous Provisions) Act 1958 – Reliability and credibility of complainant in issue
Legislation Cited: Evidence (Miscellaneous Provisions) Act 1958
Ruling: Application granted to the parties to inspect Department of Human Services file relating to the complainant – Copies of selected documents released to both parties - Undertakings as to confidentiality required and given by both parties.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S. Joosten | Acting Solicitor for Public Prosecutions |
| For the Accused | Mr C. Mylonas |
HER HONOUR:
1 Application has been made by defence pursuant to s.32C of the Evidence (Miscellaneous Provisions) Act 1958 (hereafter ‘The Act) in respect of a number of agencies or recipients for the issue of subpoenas and inspection of documents in this case, where the complainant's credibility and reliability is said to be set from that as an issue.
2 The timeframe or parameters of these applications were adjusted in the course of discussion at the original hearing of the applications, as the original applications were too broad. Also the application addressed to Lewis & Lewis Psychologists was withdrawn, as I was told that they had contacted defence to say that all of the material concerning the complainant was now in possession of Department of Education and Early Childhood Development.
3 The accused faces a rape charge and an alternative charge of sexual penetration of a child under the age of 16 years. The alleged events giving rise to the charges are said to have occurred on 13 April 2012. Defence say that sexual penetration was consensual and the complainant told the accused she was 18 years old. Therefore the issues for trial will be in respect of the accused's knowledge as to the complainant's age and whether the sexual penetration was consensual.
4 The complainant and her father would both give evidence that the accused was told by each of them that she was 14 before he had sexual intercourse with her. The basis for the rape charge is that the accused was alleged to have threatened to kill himself if the complainant did not have sex with him, such that she was intimidated into sexual intercourse.
5 Each of the s.32C applications is opposed by the prosecution and Mr Gray separately represented the Department of Education and Early Childhood Development, opposing the application concerning them. The complainant and her guardian have indicated they do not wish the material sought to be made available to defence, which is one of the matters that I ought take into account and I do so in respect of each of the applications.
6 Essentially, opposition to the applications is based on the sum of the very important considerations set out in s.32D of the Act. Mr Livitsanos for the prosecution on the last occasion pointed out that as the complainant's father also says that he told the accused about his daughter's age before the sexual penetration took place, that the complainant's credibility and reliability is not as central in this case insofar as the sexual penetration charge goes as it might otherwise be. Further, that the father's evidence is of equal or greater probative worth than anything which might be found in confidential communications, there is no need to look to such materials.
7 Whilst that might be so, if the complainant's father's credibility or reliability is called into question, as defence indicate that it will be, then the complainant's evidence in respect of what she told the accused about her age would be crucial.
8 Further, there is a rape allegation where consent is an issue and the complainant gives an account as to having succumbed to sexual intercourse after the accused threatened to kill himself, an account which is denied by the accused. Again, the complainant's credibility and reliability will be central to this alleged offence.
9 Mr Mylonas submitted that the complainant's credibility and reliability were central matters at issue in the trial; that the material he had already viewed raised some serious questions about this and that such material would be of substantial probative value either by itself or in conjunction with other evidence in the case going to the central issue. He said that he did not wish to besmirch the complainant's character or reputation in any cross-examination that might be based on such material as he sought, but that the material which he sought to inspect was not available from elsewhere and would reflect on the complainant's capacity for truthfulness and reliability.
10 An unusual incident occurred in the course of this matter at an earlier stage. Following the committal hearing, the police informant handed three documents which would qualify as confidential communications to defence. The prosecution allowed these to stay with the defence having consulted with the complainant and her guardian.
11 I read those documents and have some cause for concern in respect of the complainant's reliability and perhaps credibility, which largely lead to my decision to require documents to be produced for my inspection pursuant to s.32C(6) of the Act. I have now inspected these materials.
12 Upon inspection, this is what I found. A number of documents came within the definition of confidential communications. However, in my view, very few documents will have substantial probative value to the facts in issue in this trial. I released copies of those documents which do qualify and I do so having considered the relevant provisions of ss.32D(1) and (2) of the Act. There were some other documents which would not have met the definition of confidential communications, but in my view, they may be of some relevance to the proceedings and I will release those for inspection also.
13 I did not consider that documents in the possession of Dr Chris Cooper, which were limited and somewhat dated, met the relevant legislative requirements and they will not be released.
14 A teacher referral form for Lewis & Lewis Psychologists which was in the possession of the Department of Education Early Childhood Development is somewhat dated and in my view, lacks sufficient temporal nexus with the time of the alleged offending, and the complainant's propensities as at that time. Therefore, I do not propose to release this document.
15 Two of the documents which are released were on the DHS file and in a sealed envelope described by DHS as confidential communications. I am not sure that one of these meets the legislative definition of confidential communications, but even if it does, I intend to release it as well as another document contained in the envelope as the each meet the requirements set out in s.32D of the Act in my view.
16 It appears that the balance of the DHS file would not constitute confidential communications as defined, but the content of it is of an extremely sensitive nature and may be of some relevance to these proceedings.
17 Copies of documents to be released for inspection are from records held by Barwon Health, Nelson Park School and Port Fairy Medical Clinic. I have determined to allow inspection of the DHS file to occur, but strictly on the basis that inspection takes place within the precincts of the court or at the offices of the Director of Public Prosecutions, that is the Office of Public Prosecutions, and in the event that the latter option is taken up, the file must be returned to Registry by 4 pm on any day that the file is collected by one or other of the parties for inspection. Copies of documents may be made strictly for the purposes of conducting the trial in this matter and for no other purpose.
18 In relation to all of the documents which are to be released for inspection, be they confidential communications or not, I require that the prosecution and defence each provide me with undertakings that they will not disclose the contents of the documents to any third party to these proceedings and I require that the defence also undertake not to disclose the contents of such documents to the accused, save as is necessary in order to obtain instructions from him in relation to his trial.
19 Do I have those undertakings?
20 MR MYLONAS: You do, Your Honour, from the defence.
21 MS JOOSTEN: Yes, Your Honour.
22 HER HONOUR: Yes, thank you.
23 Very well. So copies of the documents, as I have said, that I intend to release for inspection will be provided to each of the parties as I understand that prosecution also wish to have a look at those, and in addition, I will hand the DHS file to the prosecution who will have custody of it for the day and during that time, the defence can inspect the file. But in the event that inspection is not sought today, on any particular day on which inspection is sought, then I will give the OPP custody of the file, unless the parties say that it is more convenient to inspect it here and have copies made at Registry.
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