QUESTION of LAW RESERVED (NO 1 of 2000) No. SCCRM-00-77

QUESTION OF LAW RESERVED (NO 1 OF 2000)
[2000] SASC 205

Court of Criminal Appeal: Debelle, Nyland and Lander JJ

DEBELLE J. This is a case stated by a judge of the District Court reserving certain questions of law which arise out of the operation of Part 7 Division 9 (s 67D to s 67F) of the Evidence Act 1929. These provisions were inserted into that Act by the Evidence Act (Confidential Communications) Amendment Act 1999 which came into operation on 27 June 1999. That Act contained no transitional provisions. It is scarcely necessary to add that the issues in this case stated would in all likelihood have been avoided had transitional provisions been included.
Section 67E protects from disclosure in legal proceedings communication relating to a victim or alleged victim of a sexual offence if the communication is made in a therapeutic context. Section 67E(1) provides:
“A communication relating to a victim or alleged victim of a sexual offence is, if made in a therapeutic context, protected from disclosure in legal proceedings by public interest immunity.”

The expression “therapeutic context” is defined by s 67D to mean:

“a communication relating to a victim or alleged victim of a sexual offence is made in a therapeutic context if—
(a) the communication is made—
(i).... to enable a counsellor or therapist to assess the nature and severity of the trauma suffered by the victim or alleged victim, or consequent psychiatric, psychological or emotional harm; or
(ii) for the purposes, or in the course, of psychiatric or psychological therapy provided to the victim or alleged victim; and
(b).... the communication is made in circumstances that give rise to a duty of confidentiality or a reasonable expectation of confidentiality.”

A communication which falls within s 67E is defined by s 67D to be a “protected communication”.

Section 67F prescribes the extent to which evidence of a protected communication is admissible. It is convenient to set out the whole of s 67F:
67F (1)   Evidence of a protected communication—
(a)     is entirely inadmissible in committal proceedings; and
(b)     cannot be admitted in other legal proceedings unless—
(i).... the court gives leave to a party to the proceedings to adduce the evidence; and
(ii)the admission of the evidence is consistent with any limitations or restrictions fixed by the court; and
(c).... is not liable to discovery or any other form of pre-trial disclosure.
(2)    On an application for leave to adduce evidence of a protected communication, the judge may make a preliminary examination of the relevant evidence if satisfied that—
(a).... the applicant has a legitimate forensic purpose for seeking leave to adduce the evidence; and
(b)     there is an arguable case that the evidence would materially assist the applicant in the presentation or furtherance of his or her case.
(3)    For the purposes of a preliminary examination of evidence, the court may order the counsellor or therapist to do one or more of the following:
(a)     to provide written answers to questions;
(b).... to produce written materials relating to the relevant protected communications;
(c)     to appear for oral examination.
Exceptions—
1...... If the counsellor or therapist who provided the counselling or therapy is an employee, answerable to another (the principal) in the organisation in which the counsellor or therapist is employed, an order under this subsection is to be addressed to the principal unless the court is satisfied that there are good reasons for not taking that course in the circumstances of the particular case.
2.     An order requiring a person to appear for oral examination is not to be made unless the court is satisfied that the examination cannot otherwise be effectively conducted.
(4)    The following provisions govern the conduct of a preliminary examination:
(a)     the preliminary examination is to be conducted—
(i)     in the absence of the jury (if any); and
(ii)    in a room closed to the public; and
(b).... the evidence taken at the preliminary examination is not to be disclosed to the parties or their legal representatives except to the extent determined by the court; and
(c)     no record of the preliminary examination is to be available for public access.
(5)    In deciding whether to grant leave to adduce evidence of a protected communication, the court is to weigh —
(a).... the public interest in preserving the confidentiality of protected communications;
against—
(b).... the public interest in preventing a miscarriage of justice that might arise from suppression of relevant evidence.
(6)    In weighing the above considerations, the court is to have regard to—
(a).... the need to encourage victims of sexual offences to seek psychiatric or psychological therapy and the extent to which the effectiveness of such therapy is dependent on the maintenance of confidentiality between the counsellor or therapist and the victim;
(b)     the probative value of the evidence and whether its exclusion may lead to a miscarriage of justice;
(c).... the attitude of the victim or alleged victim to whom the communication relates (or the guardian of the victim or alleged victim) to the admission of the evidence;
(d)     whether admission of the evidence is being sought on the basis of a discriminatory belief or bias;
(e).... the extent to which admission of the evidence would infringe a reasonable expectation of privacy and the potential prejudice to any person who would otherwise be protected by public interest immunity.
(7)    The court is not to grant leave to adduce evidence of a protected communication unless satisfied that the public interest in preserving the confidentiality of protected communications is outweighed, in the circumstances of the case, by the public interest in preventing a miscarriage of justice that might arise from suppression of relevant evidence.
(8)    If the court decides to grant leave to adduce evidence of a protected communication, it may make ancillary orders—
(a).... to prevent further publication or dissemination of the evidence; or
(b)     for any other purpose the court considers appropriate.”

The Accused is Charged

On 27 April 1999, that is to say, three months before these provisions came into force, the accused was charged on Information with 16 counts of indecent assault, six counts of unlawful sexual intercourse and two counts of gross indecency. On 15 March 2000 a nolle prosequi was entered in respect of two counts. It is the Crown case that the accused sexually assaulted six children over a number of years. Two of the alleged victims are the natural children of the accused, two are the children of a former de facto wife, and two are children who are friends of the children of the former de facto wife. The alleged sexual assaults range from indecent touching to anal penetration. The ages of the children range from 7 to 14 years. Each of the children will be called to give evidence.

Subpoenas are served – documents not produced

On 16 March 2000 subpoenas issued by the accused were served upon the Women’s and Children’s Hospital, Flinders Medical Centre, and Child and Adolescent Mental Health Service requiring production of all file notifications, investigations and reports of child abuse of five of the six children. On 20 March 2000 counsel for each of the institutions appeared in answer to the subpoenas. She informed the court that she had inspected the complete files from each institution and had removed from those files certain documents which, she said, were made in a therapeutic context. She declined to produce them, relying on s 67E. Affidavit evidence proved that the documents withheld had come into existence in a therapeutic context. Although not stated in the case stated, it is common ground that the affidavit evidence was prepared after the rulings, the subject of this case stated.
The prosecution conceded that at least some of the children had had the opportunity to discuss the circumstances of at least some of the counts. Counselling notes in relation to the matters about which children have complained exist in relation to five of the six children. In the course of proofing one of these five children before the trial, the statement of that child varied or required clarification. Those matters were the subject of a further declaration.

Accused applies to inspect

The accused denies any misconduct. The accused sought to inspect the documents which had not been produced in order to see whether they contain material which would cast doubt on the truthfulness or accuracy of the prosecution witnesses whose evidence is, to a considerable extent, uncorroborated. The accused argues that material held by those institutions may include material relevant to the credit of the witnesses or which may suggest collaboration between them or which may suggest that the accuracy of their memories has been affected by the counselling which has been given.

A Case is Stated

On 21 March 2000 the judge ruled:
That Part 7 Division 9 of the Evidence Act 1929 applied to therapeutic communications made before the Act into force.
That he was not entitled to inspect the documents which had been removed from the respective files.

Pursuant to s 350(1) of the Criminal Law Consolidation Act 1935, the judge reserved for the consideration and determination of the Full Court the following questions of law:

“(1).. Was I correct to rule that Part 7 Division 9 of the Evidence Act, 1929 which came into force on 27 June 1999, applies to an application made after that time pursuant to that Division in relation to communications made before that time?
(2)Is there any entitlement, either as of right or by leave of the court prior to any determination under section 67F(2), for counsel to inspect documents created in a therapeutic context which are the subject of a subpoena (perhaps on terms set by court)?
(3)... Was I correct to rule that the test imposed under section 67F(2) was different to, and higher than, the test of relevance at common law?
(4)Was I correct to rule that the test pursuant to section 67F(2) had to be satisfied before I could examine the documents to determine whether or not to allow any of the material contained therein to be adduced as evidence?
(5)... If so, was I correct to rule that the matters raised by the defence were not sufficient to give rise to the need for a preliminary examination?
(6)If I was incorrect and the matters raised by defence were sufficient to give rise to the need for a preliminary examination and I determine that there is material which is relevant, have I power to permit the defence to inspect that material, or am I restricted to deciding whether to grant leave to adduce that material (without prior inspection)?”

Question 1 - Was I correct to rule that Part 7 Division 9 of the Evidence Act, 1929 which came into force on 27 June 1999, applies to an application made after that time pursuant to that Division in relation to communications made before that time?

The Information charging the appellant with these offences is dated 27 April 1999. The amending Act introducing s 67D to s 67F came into operation three months later on 27 June 1999. The therapeutic communications were made before that Act commenced operation. The amending Act contained no transitional provisions. The first question is whether s 67D to s 67F have a retrospective operation, that is to say, whether they apply to therapeutic communications made before the Act came into force.
The general rule is that a statute will have a prospective operation in the absence of the expression of a contrary intention. The rule was stated by Dixon CJ in Maxwell v Murphy (1957) 96 CLR 261 at 267 in these terms:
“The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for the matter to vindicate an immunity or privilege, notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise past and closed. The basis of the distinction was stated by Mellish L.J. in Republic of Costa Rica v. Erlanger (1876) 3 Ch. D. 62. ‘No suitor has any vested interest in the course of procedure, nor any right to complain, if during the litigation the procedure is changed, provided, of course, that no injustice is done’ (1876) 3 Ch. D., at p. 69.”

There is nothing in s 67D to s 67F which expresses an intention that the provisions will apply to communications made before that Act commenced. That is common ground. The issue in this case is whether these provisions are changes to practice and procedure and thus, have a retrospective operation. As Dixon CJ observed in Maxwell v Murphy at 267, the distinction between statutes which affect rights and liabilities and those which enact changes in practice and procedure are clear enough in principle but difficulties always attend its application.

These new provisions in the Evidence Act apply to legal proceedings which means both civil and criminal proceedings as well as an arbitration: s 4 of the Evidence Act. Section 67E adds a class of documents to those privileged from production on the ground of public interest immunity. They are communications relating to a victim or alleged victim of a sexual offence made in a therapeutic context.
Section 67E is an amendment to the law relating to privilege. In large part, the principles which render a document privileged from production, on the ground of either legal professional privilege or public interest immunity, are the product of the common law. Section 67E is a statutory extension of the grounds of public interest immunity privilege to include protected communications. An objection to production of documents may be taken on the ground of public interest immunity privilege when documents are being discovered or when they may be produced in answer to a subpoena. If an objection taken on this ground is upheld, it is a bar to production and inspection of the relevant document. Section 67E thus extends the existing substantive law concerning the grounds of privilege which may, according to circumstances, limit the production of documents as part of either discovery or subpoena. As an amendment to the substantive law it has a prospective operation.
Section 67F(1) prescribes the extent to which protected communications are protected from disclosure. Like s 67E, it amends the substantive law. The remaining provisions of s 67F prescribe procedures for an application for leave to adduce evidence of a protected communication. They may be procedural in character. Even if they are, they cannot apply to any communication other than those which, by virtue of s 67E, constitute protected communications. Even if s 67F(1) was regarded as a procedural amendment, the same conclusion is reached. Thus, these amendments, when viewed as a whole, have a prospective and not a retrospective operation.
There is an alternative means of reaching the same conclusion. Section 67F(1) limits, among other things, rights of discovery. But for this amendment, the documents would have been required to be produced as part of discovery of documents. The obtaining of discovery by one party from another was, and always has been, a right between subject and subject: Commonwealth v Miller (1910) 10 CLR 742 especially per Griffith CJ at 746 and per Isaacs J at 754 – 755. In that case the High Court held that discovery was a right within the meaning of s 64 of the Judiciary Act 1903. Initially that right was enforced by a bill in the Court of Chancery. In 1854, powers of discovery were invested upon Courts of Common Law by the Common Law Procedure Act 1854. Upon the fusion of law and equity in England, the means of enforcing that right was regulated by the Judicature Act and the rules made thereunder. For a brief note of the history of discovery, see Bray, The Principles and Practice of Discovery (1885), p 4 – 5. In South Australia, rules of court made under the Supreme Court Act have existed to enforce the right of discvoery since about 1878. Discovery of documents is, therefore, not a procedure but a substantive right. Rules of court, such as the present Rule 58 of this Court, are of course the procedural means of enforcing that right. Amendments to those rules would, generally speaking, be amendments to practice and procedure in contrast with amendments to the substantive right of discovery. As s 67F(1) limits the existing rights of parties to discovery of documents by increasing the ambit of the law of privilege, it also limits the substantive right of discovery and for that reason also has a prospective operation.
For these reasons, I would answer question 1, No.

Question 2 - Is there any entitlement, either as of right or by leave of the court prior to any determination under section 67F(2), for counsel to inspect documents created in a therapeutic context which are the subject of a subpoena (perhaps on terms set by court)?

This question arises out of the manner in which the subpoena was answered and attempts by the legal representatives of the accused to have the documents inspected by the judge. The case stated does not indicate what application the judge was called upon to determine. Counsel consented to us reading the transcript in the court below. It is apparent that there was a degree of confusion. In part, that resulted from the manner in which the subpoenas were answered. In part, it also resulted from the failure of the legal representatives of the accused to articulate clearly what application was made on behalf of the accused.
Argument concerning the subpoenas extended over more than one day. On 17 March 2000 Ms Cork appeared for the institutions served with the subpoenas on 16 March. She informed the judge that some documents might be protected communications falling within s 67E. She undertook to get instructions and appear on 21 March when the hearing was to resume. On 21 March, Ms Cork produced certain documents in answer to the subpoenas informing the judge that she had removed from the files irrelevant material relating to other matters and had also removed documents which fell within s 67E. Counsel for the accused then asked that the judge inspect the documents to decide whether the accused should have access to those which were alleged to fall within s 67E. The submissions could have been expressed more clearly. It appears that the submission was that s 67E did not have a retrospective effect and, in the alternative, that the judge should inspect the documents for the purpose of determining whether they should be made available to the accused. In making the latter submission, counsel for the accused relied on Alister v The Queen (1984) 154 CLR 404 and Carter v Hayes (1994) 61 SASR 451. For the reasons which follow, reliance on those decisions was misplaced.
The decisions in Alister v The Queen and Carter v Hayes concern the scope of privilege at common law on the ground of public interest immunity and the power of the courts when an objection to production of documents is grounded on public interest immunity. The court must then weigh the conflicting aspects of the public interest to determine whether the balance requires production of the documents. When engaging in that task, the courts may, in the circumstances referred to in those decisions, inspect the documents. By contrast, although s 67E and s 67F extend the ambit of privilege grounded on public interest immunity, they do so in a manner which prevents the court from weighing the competing aspects of the public interest except on applications for leave to adduce evidence of a protected communication. Section 67F(1) states that evidence of a protected communication is entirely inadmissible in committal proceedings and is not liable to discovery or any other form of pre-trial disclosure: see s 67F(1)(a) and s 67F(1)(c). Those provisions are absolute in their terms. They do not permit any exception. The only circumstances in which evidence of a protected communication may be admitted is if the court grants leave to do so and the evidence is led in a manner consistent with the terms ordered by the court: s 67F(1)(b). The matters to be weighed by the court in deciding whether to grant leave to adduce evidence are set out in sub-section (5) and, in weighing those considerations, the court must have regard to sub-sections (6) and (7). Section 67F does not expressly state whether the court may inspect the documents but it appears to be implicit in s 67F(2) that it may do so in the course of making a preliminary examination of the relevant evidence. The relevant evidence must include the protected communication. There is a nice question whether a judge may inspect the documents for the purpose of determining whether the documents are in truth protected communications. It is not necessary in this case to determine that question since it was common ground that the documents were protected communications within the meaning of s 67E. Certainly, there is nothing in s 67F which permits counsel to inspect protected communications. Section 67E(1) provides that therapeutic communications are protected from disclosure. That provision thus defeats any inspection by counsel before the court makes any determination pursuant to s 67F(2).

I would answer this question, No.
Before leaving this question, it is appropriate to add one further observation. When dealing with questions in a case stated, the court should not refer to any material not set out in the case itself: Thomas v The King (1937) 59 CLR 279 at 286; R v Assange [1997] 2 VR 247. Thus, the court is not entitled to go outside the case and read the transcript. The powers of this Court on a case stated are, in substance, the same as those considered in Thomas and in Assange. Thus, the court will not, as a general rule, inspect the transcript. Those seeking an order that a court state a case should ensure that all relevant material is set forth in the case. The fact that this Court examined the transcript on this occasion should be treated as quite exceptional.

Question 3 - Was I correct to rule that the test imposed under section 67F(2) was different to, and higher than, the test of relevance at common law?

Section 67F(2) specifies the matters to which a judge is to have regard when determining an application for leave to adduce evidence of a protected communication. The evidence led in support of the application must be relevant. It is then for the judge to determine if either of the tests in paras (a) and (b) of that sub-section are satisfied. The issue is not whether s 67F(2) is different from the test of relevance at common law but, instead, regard must be had to the statutory provisions. Those are the only relevant issues and they are to be determined according to the criteria spelled out in the rest of s 67F. If this question is asking whether the criteria to be satisfied to obtain inspection of documents claimed to be privileged on the ground of public interest immunity spelled out in Alister v The Queen have any application, the answer must be “No” for the reasons given when answering the previous question.
For both of these reasons, the answer to this question is No. The test in s 67F(2) is different from the common law.

Question 4 - Was I correct to rule that the test pursuant to section 67F(2) had to be satisfied before I could examine the documents to determine whether or not to allow any of the material contained therein to be adduced as evidence?

Section 67F(2) specifies the matters of which a judge must be satisfied if he is to make a preliminary examination of documents. The judge was, therefore, correct in ruling that he had to be satisfied as to those matters. The answer to this question is Yes.

Question 5 - If so, was I correct to rule that the matters raised by the defence were not sufficient to give rise to the need for a preliminary examination?, and Question 6 - If I was incorrect and the matters raised by defence were sufficient to give rise to the need for a preliminary examination and I determine that there is material which is relevant, have I power to permit the defence to inspect that material, or am I restricted to deciding whether to grant leave to adduce that material (without prior inspection)?

These questions may be considered together. No application, written or oral, was made pursuant to s 67F(2). The only application on behalf of the accused was that his counsel be at liberty to inspect the documents, which were the protected communications, for the purpose of determining whether there were matters disclosed in the documents which could be used in support of an application under s 67F(2). It would seem that the application was made for the purpose of ascertaining whether the accused would have a legitimate forensic purpose for seeking leave to adduce the evidence. The application was bound to fail, since inspection of that kind would be in breach of s 67F(1).
At some stage, the application seems to have been converted to an application that the judge inspect the documents for the purpose of ascertaining whether there were matters disclosed which could be used in support of an application under s 67F(2). It is apparent that the judge himself was not clear as to the precise nature of the application before him. In his ruling he said:
“An application has been made, presumably, for leave to adduce evidence of a protected communication. That is the only application which is provided for under the section. What is really sought by the defence is not so much leave to adduce evidence, as permission to inspect documents to see whether there is evidence in respect of which leave to adduce it should be sought.”

The judge had no authority to inspect the documents for the intended purpose. The circumstances in which the judge may inspect the documents are prescribed by s 67F(2), namely, on an application to adduce evidence of a protected communication and only if satisfied of the matters in paragraphs (a) and (b) of that sub-section.

In the course of argument before this Court, reference was made to the difficulties confronting an accused person in making an application under s 67F(2) when access of any kind to the documents is denied. Parliament has obviously intended to erect substantial barriers in the path of access to documents of this kind. It would seem that an application under s 67F(2) will be unlikely to succeed unless there is evidence, other than the documents themselves, which will satisfy a judge of the matters in paragraphs (a) and (b). However, this issue was not fully argued and I prefer to express no final opinion.
It is sufficient to answer these questions by noting that there was no application pursuant to s 67F(2). It is, therefore, not necessary to answer questions 5 and 6. I would, therefore, answer these questions, not necessary to answer.

Conclusion

I would, therefore, answer the questions as follows:
No.
No.
No.
Yes.
Not necessary to answer.
Not necessary to answer.

NYLAND J. I have had the advantage of reading the draft reasons for judgment of Lander J. I agree with the answers proposed by Lander J to the questions reserved for the consideration of this Court for the reasons he has expressed.
LANDER J. This is a case stated by a Judge of the District Court pursuant to s 350 (1) of the Criminal Law Consolidation Act 1935.
The accused was charged on information with 16 counts of indecent assault, six counts of unlawful sexual intercourse and two counts of gross indecency. A nolle prosequi was entered on counts 15 and 16.
The Crown case is that the accused sexually assaulted six children over a number of years.
Two of the alleged victims are the accused’s natural children, two are the children of his ex defacto and two other children are friends of his de facto’s children. The age of the children range from seven to 14 years. The sexual assaults range from indecent touching to anal penetration.
The Crown proposes to call each of the children at the trial.
On 6 March 2000 a subpoena was issued directed to Family and Youth Services. On 16 March 2000 subpoena’s were issued directed to the Womens and Childrens Hospital, Flinders Medical Centre and Child and Adolescent Mental Health Services requiring the production of all file notifications, investigations and reports of child abuse of each of the alleged victims.
The institutions responded to the subpoenas and counsel appeared for each of the institutions and informed the Court that she had inspected the complete files from each institution and had removed from those files certain documents which, she said, were created in therapeutic context and which the institutions declined to produce, relying on the provisions of Part 7 Division 9 of the Evidence Act 1929.
Subsequently affidavits of employees of the institutions were tendered to prove that the documents withheld did come into existence in a therapeutic context and in circumstances where there was an expectation of and a duty to maintain confidentiality.
The accused denies any misconduct.
The accused applied to inspect the documentation which had been removed from the institutions files “to see if it contained material which would cast doubt on the truthfulness or accuracy on the prosecution witnesses, whose evidence is, at least to a considerable extent, uncorroborated.”
It was argued that material held by those institutions may include material relevant to the credit of the witnesses or which may suggest collaboration between them or which may suggest that the accuracy of their memories had been affected by the counselling given.
In the course of the application accused’s counsel sought permission to inspect the documents to see whether there was any evidence in respect of which leave to adduce the evidence should be sought.
The trial Judge delivered a Ruling in which he declined to inspect the documentation and dismissed the application and thereby declined to allow the accused’s counsel to inspect.
Subsequent to that Ruling he has reserved for the consideration of determination of this Court the following questions of law:
“9..... Pursuant to section 350(1) of the Criminal Law Consolidation Act, 1935, I now reserve for the consideration and determination of the Full Court the following questions of law:-
(1)Was I correct to rule that Part 7 Division 9 of the Evidence Act, 1929 which came into force on 27 June 1999, applies to an application made after that time pursuant to that Division in relation to communications made before that time?
(2)Is there any entitlement, either as of right or by leave of the court prior to any determination under section 67F(2), for counsel to inspect documents created in a therapeutic context which are the subject of a subpoena (perhaps on terms set by court)?
(3)Was I correct to rule that the test imposed under section 67F(2) was different to, and higher than, the test of relevance at common law?
(4)Was I correct to rule that the test pursuant to section 67F(2) had to be satisfied before I could examine the documents to determine whether or not to allow any of the material contained therein to be adduced as evidence?
(5)If so, was I correct to rule that the matters raised by the defence were not sufficient to give rise to the need for a preliminary examination?
(6)If I was incorrect and the matters raised by defence were sufficient to give rise to the need for a preliminary examination and I determine that there is material which is relevant, have I power to permit the defence to inspect that material, or am I restricted to deciding whether to grant leave to adduce that material (without prior inspection)?”
The questions raised require an examination of Division 9 of Part 7 of the Evidence Act. For completeness I set out the relevant sections, s 67D, s 67E and s 67F:
“67D         In this Division -
.................. “committal proceedings” means proceedings for the preliminary examination of a charge of an indictable offence;
“counsellor or therapist” means a person whose profession or work consists of, or includes, providing psychiatric or psychological therapy to victims of trauma (and includes a person who works voluntarily in that field);
.................. “protected communication” means a communication that is protected by public interest immunity under section 67E;
......... “psychiatric or psychological therapy” includes counselling;
.................. “therapeutic context” - a communication relating to a victim or alleged victim of a sexual offence is made in a therapeutic context if -
......... (a)     the communication is made -
(i)to enable a counsellor or therapist to assess the nature and severity of the trauma suffered by the victim or alleged victim, or consequent psychiatric, psychological or emotional harm; or
(ii)for the purposes, or in the course, of psychiatric or psychological or emotional harm; and
(b)the communication is made in circumstances that give rise to a duty of confidentiality or a reasonable expectation of confidentiality.
67E(1)    A communication relating to a victim or alleged victim of a sexual offence is, if made in a therapeutic context, protected from disclosure in legal proceedings by public interest immunity.
(2)However, the following communications are not subject to public interest immunity:
(a)a communication made for the purposes of, or in the course of, a physical examination of the victim or alleged victim of a sexual offence by a registered medical practitioner or registered nurse; or
(b)a communication made for the purposes of legal proceedings arising from the commission of the alleged offence or for commencing such legal proceedings; or
(c)a communication as to which reasonable grounds exist to suspect that the communication evidences a criminal fraud, an attempt to pervert the administration of justice, perjury or another offence.
(3)A public interest immunity arising under this section cannot be waived by -
(a)the counsellor or therapist; or
(b)a party to the protected communication; or
(c)the victim or alleged victim of the sexual offence or the guardian of the victim or alleged victim.
67F(1)    Evidence of a protected communication -
(a)is entirely inadmissible in committal proceedings; and
(b)cannot be admitted in other legal proceedings unless -
(i)the court gives leave to a party to the proceedings to adduce the evidence; and
(ii)the admission of the evidence is consistent with any limitations or restrictions fixed by the court; and
(c)is not liable to discovery or any other form of pre-trial disclosure.
(2)On an application for leave to adduce evidence of a protected communication, the judge may make a preliminary examination of the relevant evidence if satisfied that -
(a)the applicant has a legitimate forensic purpose for seeking leave to adduce the evidence; and
(b)there is an arguable case that the evidence would materially assist the applicant in the presentation or furtherance of his or her case.
(3)For the purpose of a preliminary examination of evidence, the court may order the counsellor or therapist to do one or more of the following:
(a)to provide written answers to questions;
(b)to produce written materials relating to the relevant protected communications;
(c)to appear for oral examination.
Exceptions -
1.If the counsellor or therapist who provided the counselling or therapy is an employee, answerable to another (the principal) in the organisation in which the counsellor or therapist is employed, an order under this subsection is to be addressed to the principal unless the court is satisfied that there are good reasons for not taking that course in the circumstances of the particular case.
2.An order requiring a person to appear for oral examination is not to be made unless the court is satisfied that the examination cannot otherwise be effectively conducted.
(4)The following provisions govern the conduct of a preliminary examination:
(a)the preliminary examination is to be conducted -
(i)in the absence of the jury (if any); and
(ii)in a room closed to the public; and
(b)the evidence taken at the preliminary examination is not to be disclosed to the parties or their legal representatives except to the extent determined by the court; and
(c)no record of the preliminary examination is to be available for public access.
(5)In deciding whether to grant leave to adduce evidence of a protected communication, the court is to weigh -
(a)the public interest in preserving the confidentiality of protected communications; against -
(b)the public interest in preventing a miscarriage of justice that might arise from suppression of relevant evidence.
(6)In weighing the above considerations, the court is to have regard to -
(a)the need to encourage victims of sexual offences to seek psychiatric or psychological therapy and the extent to which the effectiveness of such therapy is dependent on the maintenance of confidentiality between the counsellor or therapist and the victim;
(b)the probative value of the evidence and whether its exclusion may lead to a miscarriage of justice;
(c)the attitude of the victim or alleged victim to whom the communication relates (or the guardian of the victim or alleged victim) to the admission of the evidence;
(d)whether admission of the evidence is being sought on the basis of a discriminatory belief or bias;
(e)the extent to which admission of the evidence would infringe a reasonable expectation of privacy and the potential prejudice to any person who would otherwise be protected by public interest immunity.
(7)The court is not to grant leave to adduce evidence of a protected communication unless satisfied that the public interest in preserving the confidentiality of a protected communications is outweighed, in the circumstances of the case, by the public interest in preventing a miscarriage of justice that might arise from suppression of relevant evidence.
(8)If the court decides to grant leave to adduce evidence of a protected communication, it may make ancillary orders -
(a)to prevent further publication or dissemination of the evidence; or
(b)for any other purpose the court considers appropriate.”
All communications relating to a victim or alleged victim of a sexual offence, if made in a therapeutic context, are protected from disclosure in legal proceedings of all kind by public interest immunity; s 67E (1).
Evidence of a protected communication is not liable to discovery or any other form of pre-trial disclosure; s 67F(1)(c). It must follow from that section that evidence of a protected communication is not liable to inspection. Nor is it liable to be produced in answer to a subpoena. Because the evidence of the protected communication is privileged and not liable to discovery or any other form of pre-trial disclosure then it must follow that a party who has custody of the evidence is not liable to produce that evidence in answer to a subpoena. This legislation does not suffer from the defects identified in R v Young (1999) 46 NSWLR 681.
The evidence is never admissible in committal proceedings and can only be admitted in other legal proceedings if the Court gives leave to a party to the proceedings to adduce the evidence and the admission of the evidence is consistent with any limitations or restrictions fixed by the Court.
A party may apply to the Court, as long as that Court is not conducting criminal proceedings to have the Judge make a preliminary examination of the relevant evidence.
If an application is made the Judge may make a preliminary examination but only if satisfied that the applicant has both a legitimate forensic purpose for seeking leave to adduce the evidence and there is an arguable case that the evidence will materially assist the applicant in the presentation or furtherance of the applicant’s case.
There is therefore a threshold question to be determined before the preliminary examination takes place. Unless the applicant can satisfy the Judge of the two matters in s 67F(2) then no preliminary examination can take place.
If, on the other hand, the applicant can satisfy the Judge that the applicant has both a legitimate forensic purpose for seeking leave to adduce the evidence and there is an arguable case that the evidence would materially assist the applicant in the presentation or furtherance of the applicant’s case then the Judge may, in the exercise of the Judge’s discretion, make a preliminary examination of the relevant evidence.
In making that preliminary examination the Court can order a counsellor or therapist (who are defined in s 67D) to do any of the matters in s 67F(3).
The preliminary examination must be conducted in accordance with the strictures in s 67F(4). First the preliminary examination must be conducted in the absence of any jury who might have been empanelled and in a room closed to the public.

Not only are the public not allowed access to the preliminary examination any record of the preliminary examination is not to be available for public access: s 67F(4)(c).
Next the preliminary examination can be conducted in the absence of the accused and the accused’s legal representatives in a criminal trial or in the absence of the parties or their legal representatives in a civil trial.
Because the evidence taken at the preliminary examination may be disclosed to the parties or their legal representatives in the exercise of the Court’s discretion it would follow, it seems to me, that in some cases it might be appropriate that the accused or the parties were present. That would be a matter for the Court.
The important matter to note, however, about s 67F(4)(b) is that it does empower the Court to make the preliminary examination in the absence of the accused and the accused’s legal representatives in a criminal trial.
In determining whether or not the evidence should be admissible in the proceedings the Court is to weigh two competing public interests namely the public interest in preserving the confidentiality of protected communications against the public interest of preventing a miscarriage of justice that might arise from suppression of relevant evidence.
In weighing those two competing public interests the Court must take into account the matters in s 67F(6).
Having taken those matters into consideration the Court is not to grant leave to adduce the evidence of a protected communication unless satisfied that the public interest in preventing a miscarriage of justice outweighs the public interest in preserving the confidentiality of protected communications.
If the Court is satisfied that the evidence may be adduced the Court is entitled to make ancillary orders; s 67F(8) and to prescribe the terms upon which the evidence may be adduced; s 67F(1)(b).
The scheme of the legislation is reasonably clear. First the legislation deems protected communications to be privileged. It makes privileged communications which are not recognised by the common law as being privileged. That privilege is not capable of being waived by the victim or the alleged victims or by the counsellor or therapist or by a party to the protected communication. It protects the communications from disclosure in legal proceedings by public interest immunity.
The communication which it protects may be oral or in writing. In so far as a document evidences the protected communication the document is not liable to discovery or any other form of pre-trial disclosure.
The purpose of the legislation is clear and that is to clothe all protected communications of the kind referred to in s 67D with a privilege so as to protect those communications coming to the attention of, in the case of criminal trials, accused persons. Indeed the policy of the legislation is to protect communications of that kind from coming to the attention of anyone else apart from the parties to the communication.
However the legislation allows a party to apply to adduce evidence of the protected communication, but only if the party can satisfy the Court that the party has a legitimate forensic purpose for seeking leave to adduce the evidence and there is an arguable case that the evidence would materially assist the applicant in the presentation of the applicant’s case.
If the Court is satisfied that it ought to make a preliminary examination then it must make the preliminary examination in accordance with the strictures in s 67F(4)(a) and may make the preliminary examination in the absence of the parties and their legal representatives. If it conducts the preliminary examination in the absence of the parties or the legal representatives the Court can determine whether any of the evidence taken at the preliminary examination should be made available to the parties or their legal representatives. In carrying out the preliminary examination the Court is given the powers by which it may compel counsellors or therapists to do any of the matters in s 67F(3). At the end of the preliminary examination the Court must then decide whether it will give leave to adduce evidence of a protected communication and will do so only if it is satisfied that the public interest in preventing a miscarriage of justice which might arise from suppression of relevant evidence outweighs the public interest in preserving the confidentiality of protected communications. In arriving at that conclusion the Court must have regard to the matters in s 67F(6). The Court is empowered to place conditions and limitations upon the evidence to be adduced.
Of course in criminal proceedings an accused person will not ordinarily be aware of the communication or the evidence of that communication. It would be a relatively rare circumstance where an accused person was able to establish that there was a communication, the terms of the communication and the evidence of that communication.
It was put in those circumstances that some accused persons could go to trial without knowing that there were communications available which would qualify to be adduced as evidence under s 67F. I think that is right. I think that the scheme of the Act will preclude some accused persons from ever becoming aware of protected communications which might be relevant to the accused’s defence. But that, in my opinion, is the clear intent of the legislation.
It was submitted that the possible injustice to an accused person could be alleviated by allowing an accused person to subpoena the relevant institution’s file and on the return of that subpoena allow the accused’s counsel to inspect the protected communication for the purpose of deciding whether an application could be made under s 67F(2). It was submitted that such a procedure would alleviate the risk of a miscarriage of justice.
In my opinion to allow such a procedure would be contrary to the clear purpose and provisions of the legislation.
If a party was entitled to inspect the evidence of the protected communication to decide whether an application should be made to adduce that evidence the very privilege that the legislation gives would be lost.
It was put that the victim or the alleged victim could be protected by only allowing counsel or the accused’s legal practitioner access to the evidence of the protected communication and requiring counsel or the legal practitioner not to disclose the contents of the protected communication to the accused.
I do not agree that that procedure would be appropriate for a number of reasons. First, the privilege which attaches to the communication is against all persons including counsel and legal practitioners. If the communication is privileged it should not be inspected by any person whether they are a party or a legal practitioner. Next, such a procedure would put the legal practitioner in the invidious position that he or she might become aware of evidence which is relevant to the accused’s defence but which he or she could not communicate to the accused. The legal practitioner should not be put in that position. Thirdly, such a procedure is contrary to the legislation which makes the evidence of protected communications not available on discovery or any other form of pre-trial disclosure.
It was further submitted that the court should look at the evidence of the communication itself for the purpose of determining whether the evidence came within the definition of protected communication in s 67D. In some cases that may be right. There may be cases where it will be necessary for the court to inspect the evidence for the purpose of determining whether or not the evidence is of a protected communication. That would be a matter of last resort. Ordinarily the court could be satisfied upon evidence given either in affidavit or orally that the evidence was a protected communication or not. If however there was any real doubt that the evidence came within a protected communication s 67D then the court could, I agree, inspect the evidence for that purpose.
It was further submitted that after inspecting those documents the court had to consider two conflicting aspects of the public interest “namely whether harm would be done by the production of the documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld, and to decide which of those aspects predominates”: Alister v The Queen (1984) 154 CLR 404 at 412.
I do not agree with that submission.
There will be occasions, as I have said, where the court will need to inspect the documents but that inspection will only be for the purpose of determining whether or not the documents are documents to which s 67D applies. If they are not documents to which s 67D applies then whether or not the accused would be entitled to inspect those documents and have access to those documents will not be governed by s 67F, but will be governed by ordinary common law principles.
If on the other hand the court determines after an inspection of the documents or even without an inspection of the documents that the documents are documents to which s 67D applies then they are privileged by public interest immunity. If they are entitled to be inspected by the accused it will only be if the accused can bring himself or herself within s 67F.
The procedure therefore to be applied in my opinion so as not to frustrate the clear purpose and terms of the legislation is to first identify those communications or those documents which identify those communications as being either protected communications or not.
For the purpose of so concluding a judge may, if it is necessary to make that determination, inspect the evidence of those communications.
If the court then believes that the communications or the documents containing evidence of those communications are not protected communications under s 67D then the accused will be entitled to such access to those communications or the documents evidencing those communications as is allowed by the common law.
If on the other hand the court concludes that the communications are protected communications and thereby privileged then the accused must if he or she wishes to adduce evidence of those communications make application under s 67F(2). That application must be made, in my opinion, in the absence of the accused or the accused’s legal representatives first having access to the evidence of those communications.
Whether the accused is entitled to adduce that evidence will depend upon whether the accused can bring himself or herself within s 67F as I have explained it.
With those matters in mind I turn to the questions posed.
Was I correct to rule that Part 7 Division 9 of the Evidence Act, 1929 which came into force on 27 June 1999, applies to an application made after that time pursuant to that Division in relation to communications made before that time?
The legislation does not indicate on its face whether it applies to protected communications made prior to the enactment of the legislation or whether it applies only to protected communications made after that date. In this case the communications were made before the enactment of the legislation.
Whether therefore this legislation applies to those communications depends upon a construction of the legislation. The legislation will not be given a retrospective operation unless the legislation requires such a conclusion. It will be given a retrospective operation if the legislation only applies to practice and procedure “notwithstanding that before the change in the law was made the accrual or establishment of rights, liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise past and closed”; Maxwell v Murphy (1957) 96 CLR 261 per Dixon CJ at 267. It is necessary first to determine whether this legislation deals only with matters of procedure and if so there is no presumption against retrospectivity.
The legislation does a number of things. First it makes protected communications privileged to the extent that the communications are protected from disclosure in legal proceedings by public interest immunity. Prior to the legislation there was no such protection.
Next it makes evidence of those protected communications inadmissible in legal proceedings unless the Court gives leave to a party to the proceedings to adduce the evidence and the admission of the evidence is consistent with any limitations or restrictions fixed by the Court. Thirdly it provides a regime whereby the Court will determine whether leave to adduce evidence of the protected communication should be given. It does not make the protected communications inadmissible for all purposes. If the person who seeks to adduce the protected communication can satisfy s 67F then leave will be given to adduce evidence of those protected communications. It must be admitted that it makes it more difficult for an accused person to obtain access to the evidence of any protected communications but on the other hand it is clear that the legislation provides a procedure for an accused person to have such access.
The legislation deals with the privilege attaching to protected communications, the right to access to evidence of those protected communications and the admissibility of evidence.
In Rodway v The Queen (1990) 169 CLR 515 at 518 the Court said:
“The rule at common law is that a statute ought not to be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction. It is said that statutes dealing with procedure are an exception to the rule and that they should be given a retrospective operation. It would, we think, be more accurate to say that there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure. Indeed, strictly speaking, where procedure alone is involved, a statute will invariably operates prospectively and there is no room for the application of such a presumption. It will operate prospectively because it will prescribe the manner in which something may or must be done in the future, even if what is to be done relates to, or is based upon, past events.”
Section 67F deals only with matters of procedure. It prescribes the procedure for the obtaining of the evidence of protected communications and for the admissibility of the evidence of protected communications in legal proceedings. If that was all the legislation did I think it could be said that the subject matter of the legislation deals only with matters of procedure.
But as already explained the legislation does more. It protects the communications referred to in s 67E(1) by providing that they are subject to public interest immunity. It therefore gives to the maker of those communications a substantive right that the maker did not have prior to the legislation. It gives a statutory substantive right. It cannot therefore be said that the legislation only deals with procedural matters. It deals with both substantive and procedural rights.
Public interest immunity requires the Court to consider two conflicting areas of the public interest. Those two matters are reproduced in this legislation in s 67F(5). Public interest immunity unlike legal professional privilege does not give rise to a substantive right against all other persons who would wish to seize, inspect or require the production of the communication; Taylor v Guttilla (1992) 59 SASR 361. It is subject to the weighing exercise to which I have referred. But that does not make the immunity any the less a substantive right.
The legislation therefore does not allow for a retrospective operation. It applies only to communications of the kind in s 67E after the legislation came into operation.
That result is unfortunate. The section will not apply to many communications of the kind referred to in s 67E already made. However that is a matter for the attention of Parliament.
The answer to the first question is no.
Is there any entitlement, either as of right or by leave of the court prior to any determination under s 67F(2), for counsel to inspect documents created in a therapeutic context which are the subject of a subpoena (perhaps on terms set by the court)?
In my opinion the answer to this question is no. Section 67F (2) must be satisfied before the Judge can make a preliminary examination. Counsel would not be entitled to inspect documents created in a therapeutic context provided, of course, that those documents contain protected communications. Those documents are privileged and not liable to discovery or any other form of pre-trial disclosure. They are not therefore liable to be inspected on the return of a subpoena by the parties or their legal representatives. This legislation is clearly distinguishable from the legislation in R v Young (supra).
The Court may need to inspect the documents returned on the subpoena but only at that stage for the purpose of deciding whether they are evidence of communications to which s 67D and s 67E apply.
Otherwise the Court cannot make any preliminary examination of those documents until it is satisfied that the applicant has a legitimate forensic purpose for seeking leave to adduce the evidence and there is an arguable case that the evidence would materially assist the applicant in a presentational furtherance of the applicant’s case.
Counsel is not entitled to inspect any of those documents for the purpose of making the application in s 67F(2).
The answer to the second question is no.
Was I correct to rule that the test imposed under s 67F(2) was different to, and higher than, the test of relevance at common law?
In my opinion the common law has no application to s 67F(2) except in so far as the common law addresses questions of statutory construction.
A preliminary examination cannot be conducted by the Court unless the Court is satisfied of the two matters in s 67F(2). That is the test which has to be applied.
In that respect the question can be answered that the test is different to the test of relevance at common law.
Was I correct to rule that the test pursuant to s 67F(2) had to be satisfied before I could examine the documents to determine whether or not to allow any of the material contained therein to be adduced as evidence?
It follows from my previous answers that the answer to this question must be yes.
If so, was I correct to rule that the matters raised by the defence were not sufficient to give rise to the need for a preliminary examination?
It is not clear that any application was made under s 67F. There was no application in writing. In the Ruling which is annexed to the case stated the Judge says:
“An application has been made, presumably, for leave to adduce evidence of a protected communication. That is the only application which is provided for under the section. What is really sought by the defence is not so much leave to adduce evidence, as permission to inspect documents to see whether there is evidence in respect of which leave to adduce it should be sought.”
Later he said:
“The question is whether I should give leave to adduce evidence of them and, as a corollary whether I should, therefore, permit defence to look at those documents.”
In conclusion he said:
“I am of the view that there is no material which has been led in this case which would lead me to look at the documents, to order that they be available for inspection or to give leave to adduce them contrary to the otherwise blanket prohibition contained in s 67E from disclosure in these legal proceedings.”
Paragraph 7 of the case stated is in the following terms:
“7. Defence counsel submitted that the accused denied any misconduct. The basis for the application to inspect the documentation which had not been produced was that defence wished to examine the documentation to see if it contained material which would cast doubt on the truthfulness or accuracy of the prosecution witnesses, whose evidence is, at least to a considerable extent, uncorroborated. It is argued that material held by those institutions may include material relevant to the credit of the witnesses, or which may suggest collaboration between them, or which may suggest that the accuracy of their memories has been affected by the counselling given.”

The Ruling does not appear to respond to the application. However I am prepared to assume that the application was under s 67F(2) and my answer proceeds upon that assumption.
The accused had to satisfy the Court pursuant to s 67F(2) that the Court ought to make a preliminary examination of the relevant evidence. Until so satisfied the Court could not examine the documents to determine whether or not to allow any of the material therein to be adduced as evidence.
The application was for access to the documents by defence counsel “to see if it contained material which would cast doubt on the truthfulness or accuracy of the prosecution witnesses, whose evidence is, at least to a considerable extent, uncorroborated. It is argued that material held by those institutions may include material relevant to the credit of the witnesses, or which may suggest collaboration between them, or which may suggest that the accuracy of their memories has been affected by the counselling given.”
In my opinion those grounds did not allow the accused to successfully submit that he had satisfied either of the limbs of s 67F(2) in that those grounds could not have satisfied the Court that there was a legitimate forensic purpose for seeking leave to adduce the evidence or that there was an arguable case that the evidence would materially assist the accused and in the presentation of the accused’s case. Neither of the limbs of s 67F(2) were made out.
The answer to the question is yes.
If I was incorrect and the matters raised by defence were sufficient to give rise to the need for a preliminary examination and I determine that there is material which is relevant, have I power to permit the defence to inspect that material, or am I restricted to deciding whether to grant leave to adduce that material (without prior inspection)?
Strictly this question does not need to be answered because the answers to the previous questions show that the Ruling was correct.
However it might be useful to address this question in case a Judge was of the opinion, after conducting the preliminary examination, that leave ought to be given to a party to adduce evidence of a protected communication.
In my opinion if a Court does conclude, after conducting a preliminary examination, that the evidence of the protected communication should be admitted in the legal proceedings then the Judge would have to allow all parties access to that evidence before the evidence was admitted. Section 67F (4) (b) allows the Court to disclose to the parties or their legal representatives evidence taken at the preliminary examination which, of course, would include the evidence of the protected communication. If the Court was of the opinion that the evidence was relevant and ought to be admitted in the legal proceedings the Court would have to give the parties the opportunity to examine the evidence in case the party moving for the admission of the evidence wished to withdraw that motion.
As a matter of procedural fairness all parties to the legal proceedings would be entitled to inspect the protected communication before the evidence was admitted in the proceedings.
The short answer to question (6) is yes.
I would answer the questions:
No.
No.
The test is different to the test of relevance at common law.
Yes.
Yes.
Yes.

[2000] SASC 205

30 June 2000