Duncan (a pseudonym) v The King
[2024] VSCA 27
•7 March 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2024 0014 |
| ANTHONY DUNCAN (A PSEUDONYM)[1] | Applicant |
| v | |
| THE KING | Respondent |
[1]To avoid the possibility of prejudice in the applicant’s trial. This judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | PRIEST and BEACH JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 7 March 2024 |
| DATE OF JUDGMENT: | 7 March 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 27 |
| JUDGMENT APPEALED FROM: | DPP v [Duncan] (Unreported, County Court of Victoria, 18 January 2024, Judge Lauritsen) |
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CRIMINAL LAW – Interlocutory appeal – Pending trial for sexual offences involving step-child – Complainant claims to have repressed memories – Psychologist assisted complainant to remember – Judge’s refusal to grant leave to compel production of confidential communications pursuant to s 32C of the Evidence (Miscellaneous Provisions) Act 1958 – Whether confidential communications in counselling notes have substantial probative value – Whether production of counselling notes required for applicant to make full defence – Whether other evidence of similar or greater probative value not available – Leave to appeal granted – Appeal allowed – Interlocutory decision set aside – Orders made permitting production of protected evidence – s 32AB, 32C, 32CF, 32D Evidence (Miscellaneous Provisions) Act 1958.
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| Counsel | |||
| Applicant: | Mr T Battersby | ||
| Respondent: | Mr J Johnston | ||
Solicitors | |||
| Applicant: | Smith & Tapper | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
PRIEST JA
BEACH JA:
Introduction
An indictment filed in the County Court charges the applicant with incest[2] (one charge – charge 1), sexual assault of a child under 16[3] (one charge – charge 3) and sexual penetration of a stepchild[4] (one charge – charge 5). A trial is pending. The applicant denies committing the charged offences. His ‘defence’ is simply that the various incidents founding the three charges did not occur. Hence, the accuracy of the complainant’s memory, and the concomitant credibility and reliability of the complainant’s evidence, bears directly on the principal fact in issue on each charge; that is, whether the sexual activity alleged occurred.
[2]Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1991, s 44(2).
[3]Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016, s 49D(1).
[4]Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016, s 50D(1).
In circumstances we will later set out, the applicant applied to the trial judge under s 32C of the Evidence (Miscellaneous Provisions) Act 1958 (‘the Act’) for leave to issue subpoenas compelling the production of documents in the possession of a psychologist, and others in the possession of the Centre Against Violence (‘CAV’), containing counselling notes relating to the complainant.
On 18 January 2024, however, the trial judge refused to order production of the documents (‘the ruling’ or ‘the interlocutory decision’).
Pursuant to certification under s 295(3) of the Criminal Procedure Act 2009 (‘CPA’), given by the trial judge on 19 January 2024, the applicant seeks leave to appeal against the interlocutory decision.
For the following reasons, we consider that the judge erred in failing to order production of the documents in the possession of the psychologist. We will therefore grant leave to appeal; allow the appeal; set aside the interlocutory decision; and make orders which will permit the production of those documents.
Background
At relevant times, the complainant was the applicant’s stepchild. The first charge relates to an event alleged to have occurred between October 2009 and October 2010, and involves an allegation that the applicant procured the complainant, then aged about five years, to touch his penis. The second charge relates to an event in September or October 2017, when the complainant was about to turn 13, and involves an allegation that the applicant grabbed the complainant’s breast. And the third charge relates to incidents which allegedly occurred in October 2017 on the eve of the complainant’s thirteenth birthday, during which the applicant and a companion in company are said to have penetrated the complainant’s vagina with their fingers.
Given the absence of other supporting evidence — there is some evidence of complaint — the prosecution case on each charge turns on the credibility and reliability of the complainant’s evidence. Initially, the complainant detailed the applicant’s alleged offending in a VARE[5] interview with police on 25 February 2021. Of some significance, however, in a subsequent statement to police made on 14 December 2022, the complainant said:
I wish to provide a further statement as I have been seeing a private psychologist who has helped me during our sessions to remember some things from my childhood that I have blocked away.
[The applicant] was sexually abusing me from a younger age. I can only remember one time from when I was a kid but there might be more. I have repressed a lot of my memories.
The complainant then went on to describe an alleged act of incest, whereby the applicant penetrated the complainant’s mouth with his penis. This allegation of incest was not made in the initial VARE. In context, the allegation appears to be the product of a memory that had been ‘blocked away’ or ‘repressed’, and recovered with the assistance of the psychologist.
[5]Video and Audio Recorded Evidence. See ss 366 and 367 of the CPA.
Based on the assertion that the psychologist had helped the complainant remember things from childhood that had been ‘blocked away’ or ‘repressed’, the applicant applied to the trial judge under s 32C(1) of the Act for leave to issue subpoenas compelling the production of documents in the possession of the psychologist, and others in the possession of the CAV.
The ruling
The judge refused to make the orders sought by the applicant in the following circumstances.
On 11 January 2024, the psychologist appeared before the trial judge and said that while she was in possession of notes falling within the scope of the applicant’s proposed subpoena, she objected to their production on the basis that disclosing the protected material would cause harm to the protected person. The psychologist did, however, provide her notes to the court, so that the judge could assess their content in light of the requirements of s 32D of the Act.
A few days later, on 16 January 2024, counsel for the CAV appeared before the judge to object to the issue of the proposed subpoena. In written submissions, counsel for the CAV argued that there was nothing probative contained within the material captured by the terms of the proposed subpoena. Further, counsel submitted that the protected material should not be disclosed due to the risk of harm to the complainant. The judge requested an opportunity to review the protected material, but the CAV did not comply. As a result, the judge ordered that the material be provided to the court pursuant to s 32CF of the Act. Following this order, the judge had no further discussion with counsel concerning the contents of the documents. Nor was there any discussion with counsel concerning the factors set out at s 32D of the Act.
The judge delivered the ruling on 18 January 2024. Having read the clinical notes produced by the psychologist and the notes produced by the CAV,[6] the judge said that ‘it is clear to say the efforts of the [CAV] and [the psychologist] have protected the complainant from very serious harm’. The judge described the CAV notes as ‘cryptic’ and said that the ‘few fleeting references’ to the alleged offending lacked substantial probative value to the fact in issue, adding that whether the cryptic note could be seen as possessing substantial probative value turned on its interpretation.
[6]See s 32CF(1) of the Act.
With respect to the psychologist’s notes, the judge said ‘there are more references to the sexual behaviour of [the applicant] towards the complainant’, one at least of which ‘possesses substantial probative value’. The psychologist, the judge said, diagnosed the complainant as suffering from a ‘complex post-traumatic stress disorder’ (for which the psychologist was treating the complainant) and from ‘dissociative amnesia’. Part of the psychologist’s treatment, the judge said, ‘is encouraging these memories to surface’. That process ‘can take a long time, having already occupied more than a year’. With respect to the CAV notes, the judge said that he accepted the opinion of an Intake and Therapeutic Services Manager of the CAV, who asserted that if the confidential information contained in the CAV notes is disclosed ‘the complainant will suffer a high level of anxiety, distress, emotional harm and may suffer physical harm’. The judge concluded: ‘In truth, the need for confidentiality of any relevant disclosure, in light of the potential harm the disclosure may bring to the complainant, means I cannot allow the issue of either subpoena’.
Legislative provisions governing production of confidential communications
Section 32AB of the Act sets out the guiding principles to which a court is required to have regard when interpreting and applying the provisions of the Act relevant to this application.
By virtue of s 32B(1) of the Act, a ‘confidential communication’ includes an oral or written communication made in confidence by a person against whom a sexual offence has been committed to a counsellor in the course of the relationship of counsellor and client — there is no dispute that the documents in the possession of the psychologist and the CAV fall within that definition — and a ‘protected person’ is the person who made the confidential communication.
In context, s 32C(1) of the Act provides that, in a criminal proceeding, a document containing a confidential communication is not to be produced (and evidence of a confidential communication is not to be adduced) ‘unless the court grants leave to compel the production of the document or to produce it or to adduce the evidence’.[7] Evidence that is protected from production (or being adduced) under s 32C(1) is defined in s 32B(1) as ‘protected evidence’. By reason of s 32C(7), evidence that is not compelled to be produced or adduced is not admissible in the proceeding.
[7]In the County Court, where a party to a criminal proceeding for a sexual offence intends to issue a subpoena likely to contain a confidential communication, the practice is that the party must apply to the Court under s 32C for leave to issue a subpoena. See Practice note: Criminal Division, PNCR 2-2022, 12.29 et seq.
Section 32D of the Act restricts the circumstances in which leave may be granted. So far as relevant, it provides:
32D Restriction on granting leave
(1) A court must not grant leave to compel the production of, to produce or to adduce protected evidence unless it is satisfied, on the balance of probabilities, that—
(a) the evidence will, either by itself or having regard to other evidence produced or adduced or to be produced or adduced by the party seeking leave, have substantial probative value to a fact in issue; and
(b) other evidence of similar or greater probative value concerning the matters to which the protected evidence relates is not available; and
(c) the public interest in preserving the confidentiality of confidential communications and protected health information and protecting a protected person from harm is substantially outweighed by the public interest in admitting, into evidence, evidence of substantial probative value.…
(2) Without limiting the matters that the court may take into account for the purposes of subsection (1)(c), the court must take into account—
(a) the likelihood, and the nature or extent, of harm that would be caused to the protected person if the protected evidence is produced or adduced;
(b) the extent to which the protected evidence is necessary to allow the accused to make a full defence;
(c) the need to encourage victims of sexual offences to seek counselling and the extent to which victims may be discouraged to do so, or the extent to which the effectiveness of counselling may be diminished, if the protected evidence were produced or adduced;
(d) whether the party seeking to compel the production of or to produce or adduce the protected evidence is doing so on the basis of a discriminatory belief or bias;
(e) whether the protected person objects to the disclosure of the protected evidence;
(f) the nature and extent of the reasonable expectation of confidentiality and the potential prejudice to the privacy of any person.
(3) A court may grant leave to compel the production of, or to produce or adduce, part of —
(a) a confidential communication … ; or
(b) the contents of a document recording a confidential communication … —
and, if so, that part of the document may be made available, or that part of its contents disclosed, in any manner that the court thinks fit to the party seeking to compel its production or to produce or adduce it in evidence.
…
Applicant’s submissions in this Court
The applicant’s grounds of appeal contend that the judge erred by: not considering ‘all factors as required by s 32D’ of the Act; denying the applicant procedural fairness; preventing the applicant from ‘making a full defence’.
Counsel for the applicant submitted in writing that, in refusing the application, the judge was satisfied that both sets of documents sought by the applicant contained evidence of substantially probative value, but he made no reference to the matters at ss 32D(1)(b) or (c). The central issue in the trial is the complainant’s credibility and reliability, including the reliability of the complainant’s recovered memories. There simply is no other evidence of ‘similar or greater probative value’ available. The judge gave no indication of having made the assessment required by s 32D(1)(b), or of the public interest considerations in s 32D(1)(c).
In the initial VARE, counsel submitted, the complainant made no mention of the act of penile-oral incest occurring at age five or six that was detailed in the later statement. This allegation of oral incest appears to be a repressed memory recovered in the course of a therapy session with the psychologist. Counsel submitted that the reliability of recovered memories is an appropriate area of expertise for the purpose of the opinion rule. Without access to the psychologist’s notes, however, the applicant will be denied an opportunity to engage and properly inform a suitably qualified expert witness with respect to the nature of the complainant’s memory and the circumstances of its recovery. Consequently, the applicant will be prevented from making a ‘full defence’ to the relevant charge.
Counsel for the applicant also submitted in writing that, during discussion before the trial judge on 16 January 2024, counsel for the CAV advised the court that not all of the material sought by the applicant could be considered a ‘confidential communication’. After having assessed this material, however, the judge gave no indication in his reasons as to whether all the material could be considered a confidential communication. In light of the concession made by the CAV, the judge should have adopted a different approach to the release of any material that did not fall within the relevant definition.
The respondent’s submissions
Counsel for the respondent submitted in writing that the judge’s failure to mention in his ruling all of the matters in s 32D(1) does not mean that he failed to take them into account, and does not amount to a failure to discharge the obligation to provide adequate reasons.
Further, in written submissions counsel for the respondent submitted that there is a tension between the need to afford procedural fairness, and the prohibition on disclosure provided for in s 32CF of the Act. The absence of the notes will not prevent the applicant from cross-examining the complainant on the topic, or of adducing evidence from an expert on the reliability of recovered memory.
Counsel for the respondent also submitted in writing that counsel for the CAV did not submit to the judge that not all of the documents fell within the definition of ‘confidential communication’. In any event, the judge’s decision to refuse to release the material was based on an assessment that to do so would cause harm to the protected person. Whilst the appropriate test under s32D(1)(c) relates to confidential communications, it was appropriate to apply a similar test to non-confidential communications if their release would cause harm to the complainant.
Significantly, prior to entertaining oral argument, the Court released a copy of the psychologist’s documents to the respondent’s counsel (but not the applicant).[8] Having considered the psychologist’s notes, counsel for the respondent conceded orally that some of their content possessed ‘substantial’ or ‘significant’ probative value, and that their production was necessary for the applicant to be able to make a full defence. Counsel maintained, however, that the ‘balancing exercise’ required by s 32D(1)(c) and (2) dictated that the judge was correct to conclude that the production of the psychologist’s notes should not be ordered.
[8]See s 32CF(2) of the Act.
The intervener’s submission
Given the possible effect on its rights and interests, we granted the CAV leave to intervene and make written submissions through counsel.[9]
[9]See Watkins (a pseudonym) v Commissioner of the Australian Federal Police [2015] VSCA 321, [18] (Osborn and Priest JJA). See also Todd (a pseudonym) v The Queen [2016] VSCA 29.
Counsel for the CAV submitted in writing that the applicant must, in order to have a subpoena issue, satisfy a judge of each of the sequential preconditions contained in s 32D(1). Two categories of document were sought by the applicant. The first category only related to documents which contain ‘the account by the complainant’, all of which would fall within the definition of ‘confidential communication’. After inspection of the CAV records, counsel submitted, the judge determined the CAV records contained ‘a few fleeting references to the alleged offending’, and ‘one significant, but cryptic reference [which] could be seen as possessing substantial probative value, much turns on its interpretation’. It is clear from the judge’s reasons that he clearly considered the public interest in preventing the harm arising from disclosure of the notes, ‘harm’ that is contemplated both in s 32D(1) and a factor to be considered under s 32D(2)(a) of the Act.
Further, counsel submitted that documents in the second category related to communications between the CAV staff and the informant ‘relating to the charges laid against, and the investigation, of the [applicant]’. Any documents recording communications of that nature would not fall within the definition of ‘confidential communication’, so that — as the judge informed the applicant — the applicant did not need leave for a subpoena to issue in relation to that category of records. That being so, the judge was not required to make any further determination about the records in the second category, that second category containing no account of the complainant.
Consideration
As was recently made clear by the High Court in GLJ,[10] the standard of appellate review that this Court must apply, in cases ‘where there is but one legally permissible answer’,[11] is the ‘correctness standard’ described in Warren v Coombes.[12]
[10]GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857 (‘GLJ’). See also Haris (a pseudonym) v The King (No 2) [2024] VSCA 9; Koschier v R [2024] NSWCCA 24.
[11]GLJ, 866 [16].
[12](1979) 142 CLR 531, 552 (Gibbs ACJ, Jacobs and Murphy JJ).
We have inspected the psychologist’s notes and the CAV documents for ourselves.[13] In our judgment, so far as the documents in the possession of the psychologist are concerned, the interlocutory decision is wrong and must be set aside.
[13]See s 32CF(1) of the Act.
By reason of s 32D(1), a court must not grant leave to compel the production of protected evidence unless satisfied of three things (on the balance of probabilities):
· first, the evidence will, either by itself or having regard to other evidence produced or adduced (or to be produced or adduced) by the party seeking leave, have substantial probative value to a fact in issue;
· secondly, other evidence of similar or greater probative value concerning the matters to which the protected evidence relates is not available; and,
· thirdly, the public interest in preserving the confidentiality of confidential communications and protecting a protected person from harm is substantially outweighed by the public interest in admitting, into evidence, evidence of substantial probative value.[14]
[14]See Todd (a pseudonym) v The Queen [2016] VSCA 29, [32]–[33] (Priest JA); KR v The Queen [2018] VSCA 159, [34], [41]–[42] (Osborn and Beach JJA); Bowers (a pseudonym) v The Queen [2020] VSCA 246, [14]–[16] (Beach and Niall JJA).
Among the non-exhaustive list of things that a court must take into account when scrutinising the third of the considerations set out immediately above are the likelihood (and the nature or extent) of harm that would be caused to the protected person if the protected evidence is produced or adduced, and the extent to which the protected evidence is necessary to allow the accused to make a full defence.
Turning first to the psychologist’s notes, in his ruling the judge observed at least one reference in the notes containing the confidential communications possesses substantial probative value. It does not appear from his reasons, however, that the judge gave any consideration to the issue whether other evidence of similar or greater probative value concerning the matters to which the protected evidence relates is not available. Had the judge done so, he could not have failed to conclude that other evidence of similar or greater probative value concerning the matter to which the protected evidence — the confidential communications recorded in the notes — was not available. Indeed, it is plain that there is no other evidence available which possesses the substantial probative value of the confidential communications in the psychologist’s counselling notes.
Moreover, having regard to the guiding principles referred to in s 32AB, we consider that, proper consideration of the criteria in s 32D(2) should have led to the judge making orders effecting disclosure of the protected evidence in the psychologist’s notes. Accepting that disclosure might cause the complainant some anxiety, distress and emotional harm, and that the complainant’s privacy may be prejudiced, we are of the view that production of the protected evidence is absolutely necessary for the applicant to make a full defence. Without disclosing the contents of the psychologist’s documents,[15] it is clear to us that the counselling notes are replete with confidential communications which have significant probative value with respect to the credibility and reliability of the complainant’s memory, and hence the principal fact in issue on each charge. To make a ‘full defence’, the applicant must be capable of adducing material that will bear directly on the credibility and reliability of the complainant’s memory of critical events. In our opinion, the applicant will not be able to make a full defence without access to the documents, and we are satisfied that other evidence of similar or greater probative value concerning the matters to which the protected evidence relates is not available (none of substance being pointed to by the prosecution).[16]
[15]See s 32CF(2) of the Act.
[16]We have also considered the criteria in ss 32D(2)(c) to (f).
We take a different view with respect to the CAV documents. Although we consider the ‘cryptic’ note referred to by the judge possesses significant probative value, other evidence of similar or greater probative value concerning the matters to which the protected evidence relates will be available in the form of the psychologist’s notes. Further, we agree with the submissions made by counsel for the CAV that the ‘second category’ of documents sought by the applicant do not fall within the definition of ‘confidential communication’, and thus do not fall to be considered through the prism of s 32D.
Conclusion
For the foregoing reasons, we will grant leave to appeal; allow the appeal; set aside the interlocutory decision; and make orders which will permit the production of the psychologist’s documents.
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