DPP and Furness (Ruling 1 CR-15-01197)

[2015] VCC 1567

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-15-01197

DPP

v

DUANE BARRY FURNESS

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JUDGE:	CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	23 September 2015
DATE OF RULING:	16 October 2015
CASE MAY BE CITED AS:	DPP and Furness (Ruling 1 CR-15-01197)
MEDIUM NEUTRAL CITATION:	[2015] VCC 1567

REASONS FOR RULING
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Subject:  CRIMINAL LAW

Catchwords: Defence Applications pursuant to s.32C Evidence (Miscellaneous Provisions) Act 1958 – Leave to issue subpoenas in relation to accessing confidential communication documents

Legislation Cited:     Evidence (Miscellaneous Provisions) Act 1958

Ruling:  Leave to issue subpoenas granted – DHHS file released for inspection and photocopying – Copy limited material from other agencies released to both parties

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms D. Hannan	Solicitor for Public Prosecutions
For the Defendant	Mr C. Thomson	Slades & Parsons

HER HONOUR:

1 This is a ruling in respect of applications brought by defence pursuant to s.32C Evidence (Miscellaneous Provisions) Act 1958 (here after “The Act”).

2 Having previously ruled pursuant to s.32C(6) of the Act that I would inspect the documents which were the subject of the applications, I have now done so. I am satisfied that the documents which were sought to be produced by defence from Workways, and associated organisations, as well as Gateways Community Health, do appear to constitute confidential communications within the meaning of the Act. Having regard to the legislative requirements and competing considerations set out in s.32D of the Act, I am satisfied on the balance of probabilities that the selected copy documents which are to be released to defence and prosecution, if leave is sought, which I understand it will be, that those documents which I have selected will have substantial probative value to a fact in issue in this case. Other evidence of similar or greater probative value is not available and the public interest in preserving confidentiality as between the complainant and her various counsellors is substantially outweighed by the public interest in admitting the evidence, although bearing in mind that leave has to be obtained to adduce such evidence if it is sought to be relied on at trial.

3       Having said this, I am most concerned about the fragility of the complainant, which is evident from the materials that I have inspected, and the need to preserve her trust in her counsellors, such that if particular evidence is sought to be adduced it may well be that this is not done through cross‑examination of the complainant if the parties can agree as to an alternative way of presenting the evidence, if indeed I rule that it can be adduced at trial.  It may be that this is not possible in certain instances, but I want to have this aspect explored thoroughly and responsibly by the parties.

4       In respect of the DHHS material, for the most part the material would not appear to qualify as confidential communications as such, although, in my view, a good deal of the material is irrelevant to these proceedings, such that if particular material is sought to be adduced in the proceedings I require the parties seeking to adduce such material to first discuss this with me, as again there is a good deal of sensitive material which may well impact negatively on the complainant's well-being, which I am most concerned about.

5       Insofar as there is material which qualifies as confidential communications, in particular a psychiatric report which is on the file, I intend to release it to the applicant and respondent if leave is sought for inspection.  Although if an aspect of this is sought to be relied upon by either party, as I say, I will hear further argument as to this, in keeping with the relevant provisions of the Act.

6       It is not a document which bears directly on the reasons advanced by Defence for seeking access to material in this case. Therefore, I have decided to release this for inspection along with the other material from DHHS on the basis that the contents of this, and all the DHHS and other material released for inspection for that matter, be inspected only by counsel and their instructors and that the contents of such material not be shown to any third party or conveyed to or discussed with them save for the express purpose of obtaining instructions from the accused and that undertakings will be sought on this basis before the material is released.

7       So by this I mean that the contents of any of the material must not be discussed with the accused save for where it is considered absolutely necessary to obtain his instructions in respect of a particular matter which might be expected to be within his knowledge.  Further, in relation to DHHS, I am not going to release some original material which contains protected information such as the identity of notifiers and the like.  If either party takes the view that it is necessary for them to inspect the original unredacted version of a particular document they must make further application to me in this regard.

8       Copies have been made for each of the parties (on the assumption that leave will be sought by the prosecution), and for the court in respect of the selected Workways and Gateways material which I am satisfied can be released for the purposes of inspection.  However, the DHHS file will be released for inspection by the parties and for this purpose I will release the file into the custody of Mr Hannan and his instructor so that defence can liaise with the prosecution in respect of inspecting the file and nominating which pages they require to be copied, bearing in mind the undertakings that I will ask of each of the parties as to confidentiality.

9       The DHHS file must be returned to my associate  Ms Bronwyn Hammond by 10.30 am on Monday 9 November 2015.

Undertakings as to confidentiality

HER HONOUR: First of all I will ask you, Ms Kelly, are you prepared to give an undertaking of confidentiality in relation to any of the materials which will be available for your inspection? 
MS KELLY:  I am, Your Honour.
HER HONOUR:  Thank you.  So that binds you and Mr Thomson? 
MS KELLY:  Yes, Your Honour.
HER HONOUR:  And obviously, as I say, it is only to be, the contents of any of those documents are only to be discussed with the accused if it is felt that it is necessary, and absolutely necessary, for the purposes of obtaining instructions in this trial. 
MS KELLY:  Yes, Your Honour.
HER HONOUR:  All right.  Yes, thank you, Ms Kelly.  Mr Hannan, do you give a similar undertaking? 
MR HANNAN:  Yes, Your Honour, I will do so and my instructor will give the same, Your Honour.
HER HONOUR:  Thank you.  Then my associate has envelopes, I'm sorry, Mr Hannan, you seek leave to inspect the documents? 
MR HANNAN:  I do, Your Honour, yes.
HER HONOUR:  I ask that you do have a look carefully at all of these documents because if it is just done in a piecemeal fashion it might not too edifying, but I think you probably need to have a look at them all.
MR HANNAN:  M'mm.
HER HONOUR:  So I will provide copies of the selected documents which have qualified to be released for inspection, that's the Gateways and Workways material, and the file will be handed to the prosecution so inspection can take place by liaising with the parties.  Is there any clarification sought in relation to my ruling? 
MR HANNAN:  No, Your Honour.
MS KELLY:  No, Your Honour.