Duncan (a pseudonym) v The King - [2024] VSCA 27

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Duncan (a pseudonym) v The King

Details

AGLC: Duncan (a pseudonym) v The King [2024] VSCA 27
Case: [2024] VSCA 27
Decision Date: 7 March 2024

CaseChat Overview and Summary

In the case of Duncan v The King, the appellant was facing trial for a number of sexual offences against his step-daughter. The complainant claimed to have repressed memories of the offences, which were recovered with the assistance of a psychologist. The appellant sought to challenge the credibility of the complainant’s evidence by obtaining her counselling notes. The trial judge declined to order the production of these notes, finding that their probative value was substantially outweighed by the public interest in protecting the confidentiality of counselling communications. The appellant sought leave to appeal this interlocutory decision. The primary issue for the court was whether the confidential communications contained in the counselling notes had substantial probative value in relation to a fact in issue in the proceeding. The court also considered whether the production of the counselling notes was necessary to enable the appellant to make a full answer and defence, and whether other evidence of similar or greater probative value was available.

The court held that the confidential communications in the counselling notes had substantial probative value because they were relevant to the credibility of the complainant’s evidence and the appellant’s ability to make a full answer and defence. The court also found that other evidence of similar probative value was not available because the appellant had no opportunity to cross-examine the complainant about the contents of the counselling notes. The court granted leave to appeal and allowed the appeal, setting aside the trial judge’s decision and making orders permitting the production of the protected evidence. The court emphasised the importance of balancing the public interest in protecting confidential counselling communications against the need for a fair trial and the right to make a full answer and defence.

Orders