Francis Bowers (a pseudonym)[1] v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0129

FRANCIS BOWERS (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification of the alleged victim of sexual offending, and to prevent any risk of prejudice to the proper administration of justice, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant and the use of initials in place of the name of witnesses.

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JUDGES:	BEACH and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 September 2020
DATE OF JUDGMENT:	23 September 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 246
RULING APPEALED FROM:	DPP v [Bowers] (County Court of Victoria, Judge Hampel, 9 June 2020)

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CRIMINAL LAW – Interlocutory appeal – Applicant facing trial for sexual offences – Application by accused for leave to issue subpoena to complainant’s treating psychologist – Application refused by primary judge – Whether applicant denied procedural fairness – Whether judge entitled to conclude that basis for application was speculative on the basis of matters not raised by the prosecution, without giving applicant an opportunity to address those matters – Whether judge erred in concluding that basis of application was speculative – Appeal allowed – Primary judge’s order set aside – Matter remitted for rehearing – Evidence (Miscellaneous Provisions) Act 1958, ss 32C and 32D – Criminal Procedure Act 2009, ss 295 and 300.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms R Shann and Mr W Barker	Markotich Lawyers
For the Respondent	Mr B L Sonnet	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA

NIALL JA:

The applicant is facing trial in the County Court on two charges of rape, alleged to have been committed between 1995 and 1996. The charges relate to one complainant. It is alleged that the applicant digitally penetrated the complainant when massaging her at the end of martial arts and self-defence training sessions provided by him. At the time of the alleged offending, the complainant was aged 16 or 17.

On 5 September 2019, the applicant gave notice of his intention to issue a subpoena addressed to a psychologist, MC, who the complainant has seen in a professional capacity, for the production of the following documents:

·all documents relating to [the complainant] (including: clinical notes; notes or recordings of disclosure interviews; drawings; body charts; reports; and handwritten, printed or computerised records); and
·all documents relating to any psychiatric and/or psychological treatment, and/or counselling received by [the complainant] (including: documents relating to medication prescribed or unprescribed).

On 8 May 2020, the applicant filed written submissions in the County Court, in support of an application pursuant to s 32C of the Evidence (Miscellaneous Provisions) Act 1958 (‘the Act’) ‘for production of documents, some of which are protected evidence within the meaning of s 32C(1) of the Act.’

The applicant’s application was dealt with, on the papers, by Judge Hampel. On 9 June 2020, her Honour refused the application.[2]
[2]DPP v [Bowers] (Unreported, County Court of Victoria, Judge Hampel, 9 June 2020) (‘First Ruling’).

On 16 June 2020, the applicant filed an application for certification under s 295(3) of the Criminal Procedure Act 2009, seeking to have the judge certify that her decision was of ‘sufficient importance to the trial to justify it being determined on an interlocutory appeal’.[3] On 23 June 2020, her Honour refused that application.[4]
[3]See s 295(3)(b) of the Criminal Procedure Act.
[4]DPP v [Bowers] (Unreported, County Court of Victoria, Judge Hampel, 23 June 2020) (‘Second Ruling’).

The applicant now applies to review the refusal of the judge to certify under s 295(3) of the Criminal Procedure Act. Additionally, he seeks leave to appeal against the judge’s decision refusing his principal application. In his notice of application for leave to appeal against the order dismissing his principal application, the applicant set out the following proposed grounds of appeal:

1.Her Honour erred in concluding that it was only ‘speculative’ whether the complainant had a recovered memory of the alleged offending, in circumstances where the complainant’s own evidence is that she recovered her memory during therapy (and the complainant’s account equates to the prosecution’s case).
2.Her Honour failed to afford procedural fairness by failing to notify the applicant (either in writing or orally) of matters critical to her Honour’s conclusions in circumstances where the prosecution did not raise those matters in submissions and the applicant asked for, but was not granted, an oral hearing.
3.Her Honour erred by concluding that all the records sought fell within the definition of ‘confidential communication’ under s 32B(1) of the Evidence (Miscellaneous Provisions) Act 1958.

The relevant statutory provisions

Before turning to the issues in this case, it is necessary to identify the relevant statutory provisions. They are contained in div 2A of the Act. Division 2A concerns confidential communications. That term is defined by s 32B(1) of the Act as follows:

(1) In this Division—
confidential communication means a communication, whether oral or written, made in confidence by a person against whom a sexual offence[5] has been, or is alleged to have been committed to a registered medical practitioner or counsellor[6] in the course of the relationship of medical practitioner and patient or counsellor and client, as the case requires, whether before or after the acts constituting the offence occurred or are alleged to have occurred;

[5]The expression ‘sexual offence’ is defined in s 32B to mean ’an offence to which clause 1 of Schedule 1of the Sentencing Act 1991 applies’. For completeness we note that rape is such an offence.

[6]The word ‘counsellor’ is defined in s 32B to mean ‘a person who is treating a person for an emotional or psychological condition’.

It can be seen that the concept extends to communications with counsellors in addition to medical practitioners.

Division 2A was inserted by s 4 of the Evidence (Confidential Communications) Act 1998 following a forum convened by the Victorian Community Council Against Violence to develop a legislative proposal for the purpose of protecting the counselling notes of sexual assault victims from being improperly used in sexual offence hearings.[7] As this Court observed in KR v Shiva School Inc,[8] the text of, and background to, the Evidence (Confidential Communications) Act 1998 indicate that it was relevantly directed to remedying the mischief of sexual assault victims being deterred from reporting or giving full information to doctors or counsellors in the course of their treatment, because of uncertainty and fear about unwarranted access to their records being granted by courts.
[7]Victoria, Parliamentary Debates, Legislative Council, 21 April 1998, 503 (Ms Louise Asher, Minister for Small Business).
[8][2018] VSCA 159, [32] (‘KR’).

In terms, s 32C provides for the prima facie exclusion of evidence of confidential communications.

32C Exclusion of evidence of confidential communications
(1) In a legal proceeding—
(a)a party cannot seek to compel another party to produce a document containing a confidential communication;
(b)a document is not to be produced if it would disclose a confidential communication;
(c)evidence is not to be adduced if it would disclose—
(i)a confidential communication; or
(ii)the contents of a document recording a confidential communication—

unless the court grants leave to compel the production of the document or to produce it or to adduce the evidence, and the party seeking to have the document produced or to produce it or to adduce the evidence has given notice of their intention in accordance with subsection (2).
(2)A party seeking to compel the production of, or to produce or adduce, protected evidence must, not less than 14 days before the evidence is proposed to be compelled to be produced, produced or adduced, give notice in writing of their intention to—
(a)each other party to the proceeding; and
(b)in the case of a criminal proceeding, the informant; and
(c)the medical practitioner or counsellor, as the case requires, if not a party.

(3) The court may—
(a)fix a period of notice shorter than that referred to in subsection (2); or
(b)waive the requirement to give notice under subsection (2).

(4)On receipt of a notice under subsection (2)(b), the informant must give a copy of the notice to the protected confider[9] within a reasonable time after its receipt.
(5)Whether or not notice has been given under subsection (2) or (4), the medical practitioner or counsellor, as the case requires, and the protected confider may, with the leave of the court, appear in the proceeding and make submissions.
(6)For the purpose of determining an application for leave under subsection (1) or (5), the court may order that the document be produced to it and may inspect it but must not make the document available, or disclose its contents, to the applicant for leave.
(7)Evidence that, because of subsection (1), is not to be compelled to be produced, produced or adduced in a legal proceeding is not admissible in the proceeding.

[9]The expression ‘protected confider’ is defined in s 32B to mean ‘a person who made a confidential communication’.

As was observed in KR,[10] the following matters may be noted about s 32C:
[10]KR [2018] VSCA 159, [34].

·it relates to legal proceedings generally including criminal proceedings and not simply civil proceedings;[11]
·it provides for sequential prohibitions upon the access to and use of confidential communications subject to leave of the Court;
·it requires notice to be given to interested parties of any application to obtain the evidence;
·it grants standing to an interested medical practitioner to address the question of leave;
·it provides that on a leave application the Court may order that a document be produced to it for the purposes of determining the application; and
·it makes provision prohibiting the admission of evidence excluded pursuant to s 32C(1).

[11]Cf s 28(2) of the Act.

In this case, the relevant provision requiring notice to be given to MC was complied with by the applicant.

Section 32D of the Act makes provision governing the considerations relevant to the granting of leave pursuant to s 32C. That section 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[12] unless it is satisfied, on the balance of probabilities, that—
[12]The expression ‘protected evidence’ is defined in s 32B to mean ’evidence that is protected from being produced or adduced by section 32C(1)’.
(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 protecting a protected confider 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[13] that would be caused to the protected confider if the protected evidence is produced or adduced;
[13]The word ‘harm’ is defined in s 32B to include ‘actual physical bodily harm, financial loss, stress, shock, damage to reputation and emotional or psychological harm (such as shame, humiliation or fear)’.
(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 confider 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.
(4)The court must state its reasons for giving or refusing to give leave under this section.
(5)If leave is refused under this section, that fact must not be referred to in the presence of the jury, if any.

Again, as was said in KR,[14] s 32D(1) requires that the Court be satisfied of three sequential preconditions before leave is granted. The first requirement means that the Court must be satisfied that the evidence ‘will’ — not ‘may’ — have ‘substantial’ probative value to a fact in issue. The second requirement means that the Court must be positively satisfied of a negative, namely that other evidence of similar or greater probative value is not available. The third requirement makes clear that the statute is intended not only to recognise the individual rights of parties but to protect confidentiality of the proscribed class of evidence in the public interest.
[14]KR [2018] VSCA 159, [36]–[39].

Section 32AB sets out guiding principles which indicate some of the underlying social factors which give rise to this public interest. That section provides:

32AB   Guiding principles
It is the intention of Parliament that in interpreting and applying this Division in any legal proceeding that relates (wholly or partly) to a charge for a sexual offence, courts are to have regard to the fact that—
(a)       there is a high incidence of sexual violence within society; and
(b)       sexual offences are significantly under-reported; and
(c)a significant number of sexual offences are committed against women, children and other vulnerable persons including persons with a cognitive impairment; and

(d) offenders are commonly known to their victims; and
(e)sexual offences often occur in circumstances where there is unlikely to be any physical signs of an offence having occurred.

Again, as was observed in KR,[15] s 32D(2) elaborates matters which the court must take into account without limiting regard to other relevant matters. The specified matters relate respectively to the public interest in confidentiality of the material on the one hand, subsections 32D(2)(a), (c), (d) and (e), and on the other hand to the public interest in a fair trial of court proceedings — subsections 32D(b), and (f). The balancing exercise which a Court must undertake may be regarded as broadly analogous to that required by s 130 of the Evidence Act 2008 in respect of documents which attract claims of public interest immunity.
[15]Ibid [42]–[44].

Finally, s 32F provides for ancillary orders available on the granting of leave.

32F Ancillary orders available on a granting of leave
Without limiting any action that the court may take to limit the possible harm, or extent of the harm, likely to be caused by the disclosure of protected evidence, the court may—
(a)order that all or part of the evidence be heard in camera; or
(b)make such orders relating to the suppression of publication of all or part of the evidence given before the court as, in its opinion, are necessary to protect the safety or welfare of the protected confider or the registered medical practitioner or counsellor, as the case requires; or
(c)make such orders relating to disclosure of protected identity information as, in the opinion of the court, are necessary to protect the safety or welfare of the protected confider or the safety of the registered medical practitioner or counsellor, as the case requires.

The grounds for the application

In his written application to issue a subpoena for the production of the documents he sought from MC, the applicant set out the assertions he would make pursuant to s 32D of the Act as follows:

1.Psychologist [MC] treated [the complainant] at [MC’s place of business];
2.[The complainant] states that she has ‘only really spoken about this [the alleged events] to my psychologist, [MC]’;
3.[The complainant] states that she was giving [MC] a history of her life when these alleged events came back to her;
4.[The complainant] states that she had blocked out the memories of the alleged incidents until she started seeing psychologist [MC];
5.Evidence regarding the nature of each of the disclosures to [MC] and the process of therapy (and type of therapy) which led up to the disclosures (and stage at which they occurred during the therapeutic relationship) has substantial probative value to a fact in issue: namely, whether the conduct actually occurred;
6.The reliability of the complainant’s ‘memories’ is a critical issue in these proceedings;
7.Other evidence of a similar or greater probative value concerning the matters to which protected evidence relates is not available;
8.That the highly probative nature of the protected evidence sought and its direct bearing on the facts in issue, in addition to the public interest in ensuring a fair trial and that all the facts are properly examined before the Court outweigh the public interest in preserving the confidentiality of the confidential communications and protecting a protected confider;
9.Leave will not diminish the effectiveness of counselling or treatment; and
10.While [the complainant] has a reasonable expectation of confidentiality, the subpoena relates to matters which have already been the subject of evidence at [a] contested committal.

Having regard to the assertions made about the complainant’s evidence, by the applicant in his application to issue a subpoena for the production of MC’s records, it is necessary to now examine in some detail the relevant evidence.

The evidence of the complainant

While the offences with which the applicant is charged are alleged to have occurred between 1995 and 1996, the complainant’s first statement to police was made on 29 September 2017, and her second on 18 December 2017.

In her first statement, the complainant described an incident of digital penetration (now charge 2) occurring when the applicant massaged the inside of her leg. In her statement, the complainant said that the applicant said he needed to get to the end of her adductors ‘where they were knotted up’. She said that, in the course of saying this, the applicant put his fingers inside her. At the time, she felt embarrassed, but thought that she should not cause a fuss because ‘it must have been a technique they used’.

In her first statement, the complainant said that there were other occasions on which the applicant massaged the inside of her vagina, but she could not be ‘detailed about how many times’. As to disclosure by the complainant about these events, the complainant said that she had ‘mentioned this’ to her husband, but that she had only really spoken about it to her MC (her psychologist).

In her second police statement, the complainant provided further details about the specific incident referred to in her first statement. She said it was not an isolated event. She thought it happened the first time during Year 11, and it continued throughout her Year 12 school year. She also gave details of a second specific incident, occurring in 1995 when she was in Year 11 (now charge 1).

In her second police statement, the complainant said that the applicant attended her wedding in 1999. Specifically, the complainant said:

[B]y that stage, I have [sic] begun figuring out what [the applicant] had done to me was wrong and I knew I wanted nothing to do with him. He made me feel uncomfortable, and I remember at our wedding doing all I could to avoid him.

In her second statement, the complainant said that she had never told her husband the full story.

In notes written by the complainant in 2017, the complainant recorded:

I had forgotten about it again for some years. The ongoing battle with anxiety led to a total meltdown in July [2017]. Going to [MC] and actually working through what I thought at the time was the most traumatic sexual abuse I had been through, I just suddenly remembered it.
It made a lot of things make more sense to me. I hate going to doctors and I will go years between pap tests because I cannot stand being looked at or examined down there.

On 19 April 2018, the complainant engaged in a pretext telephone conversation with the applicant. In notes she prepared for use in the pretext call, the complainant wrote:

To put this in context, I had a bit of a meltdown about nine months ago now as I work in a high-pressured job and I had been burning the candle at both ends for too long.
I started seeing a psychologist on a regular basis. So we went back to the beginning and discussed my upbringing, childhood etc.
I was in a particular session working through some trauma recovery and my mind took me back to when I used to do the mixed martial arts training with you.

The notes then go on to recount the complainant remembering being massaged by the applicant and him putting two fingers inside her vagina during these sessions. The notes then went on:

The way you touched and penetrated me for the massage was wrong … . It has taken me a long time to even say it out loud to my psychologist because I just couldn’t understand it.

The complainant used her handwritten notes in the course of the pretext call with the applicant. After putting to him that he put his fingers inside her, which he denied, saying it was ‘external’, the complainant said:

It wasn’t external, I know it wasn’t external. I’m not 16 years old any more, I know the difference and I know what it was and I know that it courted [sic] me, I can’t — I hate going to doctors, I hate going to physios, I — it —I actually forgot about it for a few years and then it came flooding — flooding back and that explains why I’m — I put a lot of trust in you, I was only a kid.

A little later in the pretext call, the complainant said:

It has been guttering [sic] for me, like, to deal with all this shit, so, and — and the interesting thing is whilst I blocked it for a few years, I asked my husband if I had ever told him about it and he said, ‘No, but you said he was creepy’.

The complainant was cross-examined at committal. She was cross-examined about the fact that her second police statement was longer and more detailed than her first police statement, and she said that she had remembered more details. She was later asked and answered the following questions:

Now, these incidents, how often have you thought about them since they occurred?---I actually had blocked them for quite a few years.
Do you remember what age you were when you blocked them?---No, I don’t.
Around about how old do you think you were when you blocked them?---I think it was when I was having kids and I was focused on that.
So around about 19 years old?---No, it would have been after that, so maybe — maybe 20.
So somewhere between 19 and your early 20s?---Yep.
And that is how old you think you were when you blocked these memories out of your mind?---Yep.
And how long did you block them for?---Till two years ago when I started seeing [MC].
And how did they first come back to you?---I was giving him a history. I was just giving him a history of my life and it — because of the other thing and it came flooding back.
…
So from when you blocked them out around about 19 till your early 20s and when you were seeing [MC] two years ago, you never thought about these memories at all during that time?---I don’t believe so. Not consciously.
So as best you can recall you never thought about it during that time?---No.
When do they come back to you now?---Ah, when I have to talk about it. Um, it explains the terror of going to doctors and physios, etc, so, obviously, every time now, I have a conscious link to why it upsets me.
So you experienced the terror with the doctors during those years?---Yes.
And had no idea why?---Ah, no, not really.
And then, now, you’re able to say, ‘obviously, it’s because of these memories’?---Yes.

The evidence of TY

According to a statement made by TY in August 2018 (11 months before the committal), in about 2010, TY and the complainant were members of a volunteer organisation. According to TY, a friendship developed. In his statement, TY said:

We would often talk to each other about what was going on in our lives. After about two years, [the complainant] started opening up her childhood and she told me about an incident involving a massage therapist she was receiving treatment from.
…
[The complainant] told me that she had been seeing a massage therapist due to her dance and ballet classes when she was a teenager. I can’t recall if she told me her age.
[The complainant] said that there were times when the massage therapist would touch and penetrate her vagina during a massage session. [The complainant] said that the penetration was with his hands/fingers.

The application to the judge
The applicant’s evidence and submissions

The application to the judge was supported by an affidavit of the applicant’s solicitor, Daniella Markotich.[16] In her affidavit, Ms Markotich deposed to an intention to retain an expert witness (Dr Gibbs) to provide a report and give evidence. In a conversation with Dr Gibbs, Ms Markotich asked him to give her advice about:

·whether the complainant’s evidence ‘suggested a potential “recovered” memory’;
·what significance that might have to the reliability of that memory; and
·what components of MC’s file he would require in order to provide an expert report on these matters for trial.

[16]Sworn 8 May 2020.

In her affidavit, Ms Markotich also deposed to advice she received from Dr Gibbs during a zoom meeting of approximately one hour’s duration. She said:

Dr Gibbs advised that the summary provided to him of the complainant’s evidence raised questions in the field of ‘recovered’ memory.
He advised that it was now widely accepted by psychologists that a person’s subjective belief in the accuracy of a memory that has come to them after a period of ‘forgetting’ (particularly, though not exclusively, during therapy) cannot determine its objective reliability.
Dr Gibbs advised that in order to give an informed opinion and report for this trial, he would require:
(a)complete records of all sessions which predate the complainant’s disclosure of allegations in relation to [the applicant].
(b)complete records of all sessions in which the complainant spoke about ‘memories’ of [the applicant].
(c)complete records of any diagnoses of the complainant and any medication she was taking.
(d)complete records of the type of treatment techniques and approaches utilised by [MC] in treatment of the complainant.

Ms Markotich also set out the reasons Dr Gibbs gave for requiring the material he needed. One of the reasons identified was that the material would ‘show the techniques used by [MC] and the complainant in order to “remember” the memories, which are relevant to the reliability of the memories and the evidence she has given of them’.

The application was supported by comprehensive written submissions which contained a detailed analysis of the facts and the basis upon which the application was made. The core of the argument was as follows:

The prosecution case against [the applicant] depends upon the jury’s acceptance of the complainant’s account beyond reasonable doubt. Matters likely to affect her reliability and/or credibility are thus of substantial probative value. A witness’ reliability and credibility are capable of having ‘substantial probative value to a fact in issue’.
The complainant’s own evidence (taken from each of her notes, the pretext call and her committal evidence) is that prior to her therapy with [MC] she had ‘forgotten’ about the offending. She entered that therapy ‘very mentally unwell’ and after a number of sessions she ‘remembered’ the offending the subject of her first complaint to police.
Further specific memories came back to her between making her first and second statement. It is not clear from the complainant’s evidence whether they were first recalled during therapy as well — though police notes make clear she continued treatment with [MC] during the period between making her two statements.
In these circumstances, the psychological state that the complainant was in when she first attended upon [MC] and thereafter (including any diagnosis or medications), the type of therapeutic processes employed by [MC] (including the type of questions he asked), the progression of the therapy over the course of the psychologist and patient relationship (including the context of the sessions leading up to the first disclosure to [MC] and the context during the session where the allegations were first ‘remembered’), the process by which she came to ‘remember’ such significant events, and the evolution of her ‘memories’ and beliefs about what occurred during and after the first disclosure to [MC] are all matters of substantial probative value in the proceedings.
Whether there is a reasonable possibility that what the complainant alleges is in whole or part confabulation and/or false memory is in issue in this case.

The written submissions made reference to research commissioned by the Royal Commission into Institutional Responses to Child Sexual Abuse in July 2017.[17] That material was relied upon for a number of propositions including:

·Discontinuous memories of unreported sexual abuse elicited during therapy through hypnosis, guided imagery and other techniques have a high propensity for being false.[18]
·More empirical support has been gathered for the theory that memories of child sexual abuse recovered in therapy are false than for the theory that they were unreported until recovered in therapy.[19]
·‘Recovered memory’ is defined as the subjective experience of recalling a prior memory that was previously unavailable to conscious recollection.[20]

[17]Goodman-Delahunty, J, Nolan, MA and van Gijn-Grosvenor, EL (2017). Empirical Guidance on the Effects of Child Sexual Abuse on Memory and Complainants’ Evidence, Royal Commission into Institutional Responses to Child Sexual Abuse, Sydney (‘Goodman-Delahunty’).

[18]Ibid 3. We note for completeness, however, that the relevant sentence in Goodman-Delahunty relied upon by the applicant continues with the words, ‘whereas spontaneously recovered memories are associated with forgetting’.

[19]Ibid 75.

[20]Ibid 157.

The applicant’s written submissions then made reference to cases in which recovered memory was an issue — namely, R v Eishauer,[21] R v Bartlett[22] and TS v The Queen.[23] Bartlett was relied upon as authority for the proposition that the field of recovered memory is an appropriate area of expertise for the purpose of the opinion rule. Eishauer and TS were relied upon as examples of cases where the fact that a memory was ‘recovered’, in circumstances where it was necessary to accept that the memory was a true memory before the accused could be convicted, could form a basis for the conclusion that it was not open to exclude the reasonable possibility that the recovered memory, while honestly held, was false.
[21](1997) 96 A Crim R 489 (‘Eishauer’).
[22][1996] 2 VR 687 (‘Bartlett’).
[23][2014] NSWCCA 174 (‘TS’).

As to the materials sought to be subpoenaed from MC, the applicant submitted:

Some of those materials, such as those which outline any diagnoses by [MC] or therapeutic techniques are not protected disclosures under the Act. Those which are, it is submitted, plainly have significant probative value to a fact in issue in the case.

The applicant then submitted that, for the reasons outlined above, s 32D(1)(a) was satisfied — namely, the evidence which was sought to be obtained from MC ‘has substantial probative value to a fact in issue’.

The applicant then addressed the remaining paragraphs of s 32D(1) and each of the paragraphs of s 32D(2) as follows:

(1)Section 32D(1)(b): the documents sought are the only objective evidence regarding the therapeutic context and precise content of the disclosures of the complainant to MC. Without that evidence, Dr Gibbs will be unable to prepare an evidence-based expert report.
(2)Section 32D(1)(c): the public interest in preserving the confidentiality of the confidential communications and protecting a protected confider from harm is substantially outweighed by the public interest in admitting, into evidence, evidence of substantial probative value. That submission is made out by the following consideration of the paragraphs in s 32D(2).
(3)Section 32D(2)(a): while it may be assumed that the complainant would experience some stress in having her files produced to those acting for the applicant, it is to be noted that she has already voluntarily divulged some details of her treatment, including directly to the applicant in the pretext call.
(4)Section 32D(2)(b): the complainant’s reliability is central to proof of the charges. The protected evidence is required to obtain evidence-based expert opinion. This is a case requiring such expert opinion in order for a full defence to be made.
(5)Section 32D(2)(c): while it can be presumed that victims of sexual offences are more likely to seek counselling if no counselling records are ever provided to an accused in an application of this kind, plainly the Act contemplates such records will be disclosed in appropriate cases.
(6)Section 32D(2)(d): not relevant.
(7)Section 32D(2)(e): the applicant is not aware of the complainant’s position in relation to MC’s records being disclosed.
(8)Section 32D(2)(f): the complainant has herself revealed the fact of treatment. She did not endeavour to maintain complete confidentiality or privacy. Additionally, the informant has provided (presumably with her knowledge) the complainant’s notes which include details about her disclosures to MC.

The applicant’s written submissions concluded with the assertion that the requirements of the Act have been satisfied, before summing up the argument as follows:

To put it plainly: [the applicant] cannot receive a fair hearing without access to these documents. This is not a fishing expedition but a responsible and considered application designed to ensure that a jury is able to be provided with evidence, including from an expert, substantially relevant to their determination whether the prosecution are able to prove the reliability of the allegations beyond reasonable doubt.

Response of MC

In response to the application, MC wrote to the judge expressing his opposition to the applicant ‘and his defence from obtaining all information contained in the psychological treatment notes relating to [the complainant]’. MC provided three reasons for his opposition: first, there was a risk of harm to the complainant (which he had identified, but which it is not appropriate for us to set out in these reasons); secondly, the granting of leave would have negative consequences on the therapeutic relationship between himself and the complainant (again, this was elaborated on in terms that it is not appropriate for us to refer to in these reasons); and thirdly, that the complainant’s first police statement reveals that she had previously told her husband of the alleged events, before treatment with MC commenced. As MC put it:

As such, the suggestion that the therapeutic approach contributed to the memories cannot be valid, as the disclosures had previously been made before [the complainant] entered treatment.

Prosecution’s submissions

The prosecutor filed a four paragraph response to the applicant’s material, in which it was submitted that objection had been appropriately taken by MC. The respondent submitted that there was a significant public interest in preserving the confidentiality of an individual’s counselling records. It was conceded, however, that ‘appropriately limited materials may have substantial probative value’. Ultimately, ‘it was a balancing exercise for the Court in light of the materials, noting that establishing substantial probative value is a high hurdle’.[24]
[24]The prosecution cited Baker (a pseudonym) v The Queen [2015] VSCA 323, [50] as authority for this proposition.

The prosecution submitted that the Court was required to take into account the factors outlined in s 32D(2) of the Act. The only submission made in respect of those factors, however, was that it was ‘noted that in relation to (a) and (e), the complainant does object to the release of the appropriately limited materials’.[25]
[25]Emphasis in original.

The prosecution’s submissions concluded with a contention that if the Court were minded to grant leave to the applicant to issue the subpoena, then the Court ought exercise its discretion under s 32C(6), to order that the documents sought be produced to the Court, be inspected and redacted as appropriate before release (if any) to the parties.

Applicant’s reply submissions

The applicant filed reply submissions, in which he noted that the prosecution had not submitted that his application had failed to demonstrate that the materials sought have substantial probative value. The applicant also contended that it was significant that the prosecution had not submitted that the applicant’s summary of the evidence contained any relevant errors or omissions, or that the authorities referred to by the applicant were not applicable.

The applicant responded to the submission made by the prosecution about redactions, saying that any redaction should be done in light of the contents of Ms Markotich’s affidavit. The applicant elaborated on this submission, contending that:

Dr Gibbs has emphasised to Ms Markotich the requirement for him to see the complete context around the disclosures about [the applicant]. Dr Gibbs has the expertise to review that context to determine its impact on the reliability of the complainant’s allegations. The Court does not have Dr Gibbs’ expertise.

In relation to MC’s objections, the applicant submitted that none of the matters raised by him alter the proper application of the balancing act in s 32D. The applicant referred to MC’s assertions and opinions not being in affidavit form, and said:

In light of how significant this application is to [the applicant’s] right to a fair trial, defence do not accept [MC’s] untested assertions and opinions. Should the Court be considering refusal of [the applicant’s] application based on one or more of the assertions or opinions of [MC], then defence requires an opportunity to cross-examine [MC] before any determination is made.

In relation to MC’s third reason for objecting, the applicant submitted that this was based on a false premise. While in her first police statement, the complainant said that she had already told her husband about relevant matters prior to treatment, in her second statement she made it clear that she had not told him the full story. Moreover, at the committal, the complainant swore that all she ever told her husband about the applicant was that she ‘thought he was creepy’.

Finally in the reply submissions, the judge was informed that the applicant had provided instructions that undertakings could be given by his legal advisers that any records obtained would not be provided to him. The applicant submitted that ‘only lawyers and Dr Gibbs would review those materials’ and that this ought to alleviate some of MC’s concerns.

Determination on the papers

Having regard to the applicant’s proposed ground 2, which refers to his request for an oral hearing that was not granted, it is necessary to describe the circumstances in which the application came to be determined on the papers.

On 4 May 2020 (before any submissions had been filed) the judge’s associate wrote to the parties seeking ‘confirmation as to whether they agree[d] to this matter being heard on the papers’. The email proposed a timetable for submissions, and foreshadowed that the judge proposed to make a decision on the papers on 13 May 2020 with no attendance required by the parties. Later that day, Ms Markotich replied on behalf of the plaintiff, saying:

Unfortunately this application, from the perspective of defence, is not one well suited to determination on the papers.
Reasons include that defence are speaking with a potential expert witness on recovered memory and may seek to tender an affidavit relevant to the s 32C application as a result. Further reasons include that: (a) defence cannot meet the proposed timetable; (b) defence do not consider (in the circumstances of a potential recovered memory case) that it is appropriate for detailed written submissions to be provided to the complainant’s psychologist (who may be a witness); and (c) defence wish to ventilate the critical importance of accessing the material orally.
Counsel for defence has spoken to counsel for the prosecution about each of these matters. The prosecution’s position is that, in these circumstances, they understand why defence do not agree to forego an oral hearing. While the prosecution would prefer an ‘on the papers’ hearing, they do not oppose this matter proceeding orally in light of the above.

There was then further correspondence between the Court and the parties, extending the dates initially proposed by her Honour for submissions.

After the filing of all of the submissions, the parties were advised by the judge’s chambers that her Honour was of the view that it was appropriate to make an order, on the papers, under s 32C(6) for the production of the documents to be inspected by the judge. The parties were advised that if they opposed the making of such an order on the papers, they were to file written submissions in support of an oral hearing. Ms Markotich replied, saying:

Defence do not oppose her Honour making a s 32C(6) order on the papers — noting [4] of the defence reply submissions.[26]

[26]Paragraph [4] of the applicant’s reply submissions contained the statement that the applicant had no objection to irrelevant matters being redacted from the documents. It also contained the submission that the Court did not have Dr Gibbs’ expertise.

On 28 May 2020, the judge made the order she foreshadowed under s 32C(6) of the Act. The Court again wrote to the parties, stating:

Please see attached the orders made by her Honour today in the above matter. As it turns out the material from [MC] is already filed with the Court, so a date for production has not been set. Parties will be advised prior to the listed hearing date (next Friday) if her Honour requires an appearance.

On 3 June 2020, Ms Markotich emailed the Court asking whether the Court ‘could advise today as to whether or not the parties are to attend a hearing this coming Friday 5 June 2020’. Her Honour’s chambers replied by saying that they could confirm that her Honour did not require the parties to attend on Friday. As the judge put it, in her reasons for refusing to certify under s 295(3) of the Criminal Procedure Act:

There was no further response from the defence. There being no request from the defence to make further submissions, orally or in writing, I then decided the matter in chambers. I was of the understanding that the defence had made the submissions on which it intended to rely, no longer sought an oral hearing and was aware of the course the matter would then take. That would be, either a refusal of the application or the granting of leave to compel production and the making of an order permitting the parties to inspect the documents produced.[27]
[27]Second Ruling [23].

First ruling

The judge commenced her reasons for refusing the s 32C application with a description of the background of the case and the complainant’s evidence. She then referred to Ms Markotich’s affidavit, and in particular that part of the affidavit setting out her dealings with Dr Gibbs.[28]
[28]First Ruling [1]–[17].

The judge noted that the documents sought from MC were not limited to those predating disclosure or predating the making of the complainant’s second police statement.[29] The judge said that, given the complainant’s evidence of complaint at committal, she was not satisfied that there was any basis for the production of records relating to confidential communications between the complainant and MC occurring after the making of the complainant’s second statement to police.[30] Her Honour then refused the application, so far as it related to any confidential communications made after the making of the second police statement (namely, 18 December 2017).[31]
[29]Ibid [18].
[30]Ibid [19].
[31]Ibid [20].

The judge then turned to consider the documents sought that predated 18 December 2017. She said that it was accepted that ‘those records fall within the definition of confidential communication in s 32B(1) of the Act’.[32] This statement in her Honour’s reasons is the subject of proposed ground 3 — the applicant contending that the statement is wrong when one has regard to paragraph 35 of his submissions-in-chief to the judge that, ‘some of those materials, such as those which outline any diagnoses by [MC] or therapeutic techniques are not protected disclosures under the Act’.
[32]Ibid [22].

The judge then turned to s 32D(2). In the course of her analysis of the s 32D issues, the judge said:

It is submitted on behalf of the accused that the evidence has substantive probative value to a fact in issue, namely the reliability and/or credibility of the complainant. In a case such as this, a jury would have to be satisfied beyond reasonable doubt of the complainant’s account if it were to convict the accused. The truthfulness and reliability of the complainant is clearly a fact in issue. Reliability and credibility of a witness whose evidence must be accepted in order for a jury to convict is, I accept, properly capable of being characterised as having substantial probative value to a fact in issue.[33]

[33]Ibid [25].

The judge, however, rejected the applicant’s contentions that the case against him involved recovered memory. In terms, the judge said:

[S]o far as the issue of recovered memory in this case is concerned, the highest it is put is that, as a result of the complainant’s evidence she had blocked out the memories in question for many years, the defence wants to explore whether there is a potential issue in respect of recovered memory which might affect the reliability of her evidence.
This, in my view, is no more than a fishing exercise. Ms Markotich’s affidavit does not go so far as to say that Dr Gibbs has formed a view there is a possibility of recovered memory. The highest it is put is that he would need access to the counselling records to determine whether that is a possibility. There is no evidence to suggest the possibility of confabulation.
This is not a case where there is no evidence of complaint by the complainant until counselling. There is evidence of complaint from a number of sources covering the period from the allegations until the time the complainant was bearing and raising her children and the 2012 disclosures. That includes the complainant’s evidence that she had, without recounting any detail, but by reason of what he had done, described the accused to her husband, at about the time of her marriage at age 19, as ‘creepy’, her evidence that, by about the time of her marriage, she realised what he had done was not appropriate, her evidence that it was not until some years after the events, at the time she was having her children, that she blocked out the memories (including that, until then, she still remembered what had happened) and the evidence of [TY] regarding her 2012 disclosures.[34]

[34]Ibid [26]–[28].

Next, the judge referred to her examination of the documents pursuant to the order she made under s 32C(6) of the Act. She said that there was nothing in those records that altered her view about the speculative nature of the potential for recovered memory.[35]
[35]Ibid [30].

The judge said that, ‘in those circumstances, [she] was not satisfied, pursuant to s 32C(1)(a) the records would, either by themselves or having regard to other evidence produced or adduced or to be produced or adduced by the [applicant], have substantial probative value to a fact in issue in the trial’.[36]
[36]Ibid [31].

The judge finished her reasons by saying that, even if she had been satisfied that the evidence had substantial probative value, when considering the public interest test in s 32D(1)(c), and having regard to the opposition of the complainant to the release of the documents, and the concerns raised by [MC] about how the release of the documents would affect the complainant, she would not have been satisfied that the extent to which the records were necessary to allow the applicant to make a full defence outweighed the considerations in s 32D(2)(a), (e) and (f).[37]
[37]Ibid [32].

The application for certification and its refusal

In support of his application to the judge for certification under s 295(3) of the Criminal Procedure Act, the applicant filed a relatively extensive written submission in which he contended that her Honour’s interlocutory decision was of sufficient importance to the trial to justify it being determined on an interlocutory appeal. The applicant also submitted that there was sufficient doubt as to the correctness of the interlocutory decision to justify certification. The applicant identified three reasons to doubt the correctness the of order dismissing his s 32C application, as follows:

(1)The judge’s conclusion that it was only speculative whether the complainant had a recovered memory was not supported by the complainant’s own account ‘of her non-continuous memory and its re-emergence in therapy’. Her evidence that she now, post therapy, recalls having recalled the memories for a number of years before she forgot them ‘in no way detracts from the centrality of the issue of recovered memory to this case’.
(2)In making her findings that recovered memory was only speculative in this case, the judge denied the applicant procedural fairness by failing to give him an opportunity to adduce evidence from Dr Gibbs or to make submissions in response to her Honour’s conclusion that this was not a case where there was no evidence of complaint by the complainant until counselling.
(3)The judge was wrong to conclude that all the records sought fell within the definition of ‘confidential communication’. This conclusion was contrary to the applicant’s submission — a submission which was not challenged by the prosecution.

The judge was not persuaded by any of the applicant’s submissions. In refusing certification, the judge noted that the application had failed at a threshold level ‘because the defence did not meet the evidentiary burden of establishing there was evidence of recovered memory of sufficient probative value’ to meet the test in s 32D(1)(a).[38]
[38]Second Ruling [8]–[10].

The judge then dealt with the applicant’s complaint about procedural fairness, ultimately concluding, that the applicant’s complaint was without substance.[39] The judge did not, however, address the applicant’s complaint concerning whether all of the records sought fell within the definition of confidential communication in s 32D of the Act.
[39]Ibid [11]–[23].

Parties’ contentions

It was common ground in argument before us that uncorroborated recovered memories, meaning memories that are unavailable to conscious recollection, give rise to a doubt as to their reliability such that the prosecution’s ability to prove charges based upon them may be fatally affected. It was also common ground that recovered memory is an appropriate area of expertise for the purpose of the opinion rule.[40]
[40]See s 76 of the Evidence Act 2008.

Under ground 1, the applicant contended that the prosecution case is that the complainant should be accepted as both a truthful and a reliable witness. Her account is that there was a period of approximately 17 years when her ‘memory’ of digital penetration was unavailable to her conscious recollection until, after having a ‘meltdown’ and attending therapy, she suddenly remembered it. Thus, the applicant contended that the complainant’s own evidence is that of a ‘recovered memory’ as that term is uncontroversially understood.[41]
[41]See Goodman-Delahunty, 157.

The applicant submitted that recovered memory is a central issue in the trial. The applicant tendered unchallenged evidence that his expert (Dr Gibbs) required access to the therapy file in order to provide a report for trial. The judge’s conclusion that it was only ‘speculative’ whether the complainant had a recovered memory was not supported by the complainant’s own account of her non-continuous memory and its re-emergence in therapy. Moreover, it was not a conclusion urged upon her Honour by the prosecution. Her Honour’s conclusion involved a misreading or misunderstanding of Dr Gibbs’ position as set out in Ms Markotich’s affidavit. Additionally, her Honour’s conclusion that recovered memory only might be an issue in the proceeding was contrary to the applicant’s submission that it is an issue in the proceeding — which submission was not cavilled with by the prosecution in its submissions.

Under ground 2, the applicant contended that the judge made critical findings against his application, without providing him with a fair opportunity to adduce evidence from Dr Gibbs to contradict her Honour’s interpretation of his position; or to make submissions in response to her conclusions about the matter not being shown to be one involving recovered memory. While her Honour was not bound by the lack of opposition by the prosecution or prevented from forming a judgment based on matters not raised by either party, her Honour was obliged to put the applicant on notice that, notwithstanding the lack of opposition, she was of the view that unraised relevant matters militated against granting the applicant’s application.

Under ground 3, the applicant contended that the judge erred in concluding that all of the records were caught by s 32C of the Act. The records sought included those disclosing the type of therapy that was provided. Memories elicited during some types of therapy have a high propensity for being false.[42] Records as to the type of therapy engaged in are not caught by the s 32C regime as they do not record a complainant’s communication. This submission, made by the applicant to the judge, was not challenged by the prosecution. Her Honour did not refer to it in her ruling, instead, stating incorrectly that it was accepted that the records identified by Dr Gibbs as necessary fell within the definition of confidential communications in s 32B.[43]
[42]Goodman-Delahunty, p3.
[43]First Ruling [22].

In response to the applicant’s submissions, the respondent submitted that the judge’s ruling on the s 32C application was correct, and that the judge was correct in refusing to certify on the basis that her decision was not attended by sufficient doubt.

In relation to ground 1, the respondent submitted that the judge was correct to observe that this was not a case where there was no evidence of complaint until counselling. In this regard, the judge was entitled to rely on the police statement made by TY. The complainant’s evidence was not of recovered memory but that:

the memories of the event came back to her when she was giving [MC] a ‘history of [her] life’. She agreed that she never ‘consciously’ thought about these memories until she provided that history to her psychologist.

The respondent submitted that the flaw in the applicant’s argument was exposed in his assertion that ‘uncorroborated recovered memories give rise to a doubt as to their reliability’. The respondent submitted that, ‘this is not such a case’. In its written summary of contentions in this Court, the respondent submitted:

In short, the memories have not been ‘recovered’ by the psychologist with such recovery being the only source of the complainant’s recollection of the alleged events; for the complainant was providing an historical account of her life when the memories came ‘flooding back’ and she was able to recount such events. The complainant was not challenged on this evidence. Furthermore, a full disclosure of the events has already been made to [TY] in 2012 which tells against this being a true ‘recovered’ memory case.

In relation to ground 2, the respondent submitted that there was no procedural unfairness. The judge did not err in her conclusion about Dr Gibbs. Dr Gibbs ‘simply could not provide an opinion on the topic unless he had access to the s 32C material’. The respondent contended that the adducing of additional evidence from Dr Gibbs and/or further legal submissions could not change the conclusion of Dr Gibbs as deposed to in Ms Markotich’s affidavit.

In relation to ground 3, the respondent submitted that the judge made no error. The applicant’s argument was said to proceed on the false premise that the disclosure made by the complainant flowed from treatment provided by the psychologist in respect of ‘recovered memory’. That, as the judge ruled, was not this case.

Finally, the respondent submitted that even if the applicant was successful on grounds 1 or 2, leave to appeal should be refused because he has not challenged the judge’s s 32D(1)(c) determination that, taking into account the matters referred to in

s 32D(2), the public interest in preserving the confidentiality of MC’s records was not outweighed by the public interest in admitting them into evidence.

Consideration

We see no error in the judge’s determination to hear the application on the papers and, as the judge observed, once all of the material had been filed, there was no renewal of the applicant’s initial request that the matter be dealt with by way of an oral hearing.[44] That conclusion, however, does not dispose of the applicant’s procedural fairness complaint. In our view, there is force in the applicant’s contention that, in not being appraised of the possibility that the judge might form the opinions she ultimately formed that led to the dismissal of his application, the applicant was denied procedural fairness. It may be that the absence of an oral hearing contributed to the problem by removing the opportunity for the point to have been exposed and addressed by the parties.
[44]Second Ruling [23].

At the heart of her Honour’s reasons for refusing the application was her conclusion that ‘the defence did not meet the evidentiary burden of establishing there was evidence of recovered memory of sufficient probative value to meet the requisite standard’.[45] In arriving at this conclusion, her Honour placed considerable reliance on what was said to be the disclosures to TY in 2012, and the fact that the complainant described the applicant to her husband, at the time of their marriage in 1999, as ‘creepy’.[46]
[45]Ibid [10].
[46]First Ruling [28].

While these matters were obviously of considerable importance to her Honour, it is by no means clear from the evidence what significance they could or should have had in fact to the issue of recovered memory generally, or the issue of whether the complainant’s memory was a recovered memory in the relevant sense. Four points may be made.

First, the question of whether the disclosure to TY was in fact a disclosure of offending alleged to have been committed by the applicant (and not someone else) is, on TY’s statement, by no means clear. The disclosure to TY involved the complainant being penetrated by a massage therapist she was seeing ‘due to her dance and ballet classes’, whereas the circumstances of the applicant’s alleged offending relate to massages at the end of martial arts and self-defence training sessions.

Secondly, even if the complainant made disclosures of the applicant’s alleged offending to TY in 2012, a question remains whether the complainant may have subsequently forgotten the relevant matters, and later recovered them during the course of treatment with MC. The possibility of recovered memory being relevant in those circumstances was one that needed to be explored before simply ruling that the 2012 disclosures meant that this was not a case of recovered memory. To that end, we note that Ms Markotich deposed to Dr Gibbs’ belief that, ‘a person’s subjective belief in the accuracy of a memory that has come to them after a period of “forgetting” … cannot determine its objective reliability’. That hearsay opinion of Dr Gibbs would not seem to limit the concept of recovered memory to some particular specified single, or unbroken, period of forgetting.

Thirdly, the fact that the complainant had described the applicant as ‘creepy’ to her husband in 1999 was, again, not something that the judge could rely upon as ruling out the relevance of recovered memory to the applicant’s case. The judge was entitled to think that the matter might be relevant, but was we think bound, in the circumstances, to raise the issue with the applicant in order that it might be addressed by expert evidence, or further submissions, if necessary.

Fourthly, the evidence of TY as disclosed in his statement was not consistent with the complainant’s account in her police statements and, perhaps more importantly, her evidence at committal. In such circumstances it was incumbent upon her Honour to at least raise the possibility of TY’s evidence being a matter that might tell against the granting of the applicant’s s 32C application on the basis that this was not a recovered memory case — particularly as neither the prosecution nor any other interested party had sought to rely on TY’s statement in this way.

The denial of procedural fairness we have identified above is a sufficient basis for reviewing the judge’s refusal to certify under s 295(3), granting leave to appeal on ground 2, allowing the appeal and remitting the applicant’s s 32C application for rehearing and determination in accordance with these reasons.[47]
[47]See s 300(2)(b)(ii) and (3) of the Criminal Procedure Act.

With respect, we also think the judge was wrong to determine that on the evidence of Ms Markotich, the issue of recovered memory was only speculative. It may be that, after a fuller examination of the facts, her Honour might be held to be correct to so conclude. Our difficulty is that we do not see a basis for that conclusion at this stage. The difficulty is, in large part, created by the fact that the applicant chose not to put Dr Gibbs on affidavit — but rather to rely on Ms Markotich’s second-hand recounting of Dr Gibbs’ alleged opinion. Having regard to the significant matters that had to be established under s 32C, and the importance of the issue to the applicant, that was a bold approach to take (notwithstanding the limited nature of the prosecution’s response to the application at first instance).

Nevertheless, at least at this point, the potential in this case for a challenge based on infirmities of recovered memory was far more than speculative. First, the complainant’s own account was that her memory of the alleged offending arose in the context of therapy; she did not give an account of any earlier detailed recollection nor having spoken to TY; and she raised her therapy with the applicant in the pretext call. Whether her account of the offending is accepted by a jury as true, will no doubt be affected by the circumstances in which she brought it to mind and complained. Given that on her own account it occurred in the context of consultations with MC, what was said and the circumstances in which it was said may prove to be relevant to the veracity of her account. It cannot be dismissed as things presently stand as a matter of mere speculation.

For the sake of completeness, we should also say that there is substance in ground 3 insofar as her Honour approached the application on the basis that it was accepted by the parties that all of the records produced fell within the definition of confidential communication in s 32B of the Act.[48] Having examined the documents produced by MC for ourselves, we should say that, while many of them contain confidential communication, it is not immediately apparent that every one of them is caught by the operation of 32C, in that its production would disclose a confidential communication. As we are, however, of the view that the application should be remitted, it is not appropriate for us to make any further comment on that issue. The question of whether each and every document that has been produced by MC is relevantly caught by s 32C is a matter that should be determined by a judge sitting at first instance.
[48]First Ruling [22].

In the course of argument, we were invited by the applicant to determine the

s 32C application in his favour pursuant to s 300(2)(b)(i) of the Criminal Procedure Act. We are not persuaded, however, that that is an appropriate course in light of the state of the evidence and the matters relied upon by the judge in her rulings when refusing the applicant the relief he sought. Having regard to what we have said above, we are not persuaded that ground 1 has been made out or that the s 32C application should be granted at this stage.

The failure to obtain an appropriately detailed affidavit from Dr Gibbs has led to this matter being argued, to date, on a less than satisfactory evidentiary foundation. While the applicant placed much reliance upon the Goodman-Delahunty paper, it must be said that the status and evidentiary value of that document on its own is itself questionable. It would be different, if that document was produced in evidence by an appropriately qualified expert who then gave evidence about its content and the acceptance of its conclusions by people with relevant expertise.[49]
[49]See generally, PQ v Australian Red Cross Society [1992] 1 VR 19, 34–8.

Finally, we reject the respondent’s submission that leave to appeal should be refused because the applicant has not challenged the judge’s s 32D(1)(c) determination that, taking into account the matters referred to in s 32D(2), the public interest in preserving the confidentiality of MC’s records was not outweighed by the public interest of admitting them into evidence. That conclusion by her Honour[50] was reached after balancing what her Honour thought, on the evidence before her, was the probative value of MC’s records, in a case where she had concluded that the evidence of recovered memory was not of sufficient probative value to justify the granting of the s 32C application.
[50]First Ruling [32].

Ultimately, the balancing exercise that will need to be performed is one that will be performed on a different evidentiary matrix from the one upon which her Honour was required to determine the matter.

Conclusion

Leave to appeal will be granted, the appeal will be allowed and the order made in the County Court on 9 June 2020 will be set aside. Pursuant to s 300(2)(b)(ii) of the Criminal Procedure Act, the applicant’s application under s 32C of the Act will be remitted to the County Court for rehearing and determination in accordance with these reasons. In the rehearing of the application, the parties will be at liberty to call evidence, and file and serve affidavits and submissions in addition to those already filed and served.

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Francis Bowers (a pseudonym)[1] v The Queen [2020] VSCA 246

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KR v BR [2018] VSCA 159

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[2020] VSCA 246

23 September 2020