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

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]

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.

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Details

Case: [2020] VSCA 246
Decision Date: 23 September 2020

CaseChat Overview and Summary

The case involves an accused, Francis Bowers, who is facing trial for sexual offences. Bowers applied for leave to issue a subpoena to the complainant's treating psychologist, which was denied by the primary judge. Bowers appealed the refusal, arguing that he was denied procedural fairness and that the judge was entitled to conclude that the basis for the application was speculative without providing an opportunity for Bowers to address these matters. The central issue was whether the primary judge erred in concluding that the basis for the application was speculative, without providing an opportunity for Bowers to address those matters.

The court considered whether the primary judge's decision to deny the subpoena application was legally sound. The court noted that the primary judge concluded the basis for the application was speculative on the basis of matters not raised by the prosecution, without giving the applicant an opportunity to address those matters. The court found that the primary judge erred in concluding that the basis of the application was speculative, without providing an opportunity for the applicant to address those matters. The court held that the primary judge did not consider the application on its merits and did not give the applicant an opportunity to address the primary judge's concerns.

The court allowed the appeal and set aside the primary judge's order, remitting the matter for rehearing. The court held that the primary judge erred in concluding that the basis of the application was speculative, without providing an opportunity for the applicant to address those matters. The court noted that the primary judge did not consider the application on its merits and did not give the applicant an opportunity to address the primary judge's concerns. The court held that the primary judge's failure to give the applicant an opportunity to address those matters resulted in a denial of procedural fairness.

The court did not make any final orders, but rather set aside the primary judge's order and remitted the matter for rehearing. The court held that the primary judge's failure to give the applicant an opportunity to address those matters resulted in a denial of procedural fairness. The court found that the primary judge erred in concluding that the basis of the application was speculative, without providing an opportunity for the applicant to address those matters. The court held that the primary judge did not consider the application on its merits and did not give the applicant an opportunity to address the primary judge's concerns.

Orders