R v Bowden

[2020] NSWDC 363

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Bowden [2020] NSWDC 363

Hearing dates:

09 June 2020

Date of orders:

10 June 2020

Decision date:

10 June 2020

Jurisdiction:

Criminal

Before:

Bennett SC DCJ

Decision:

1 Grant access to the parties to the documents received from Commonwealth agency Services Australia [Medicare]

2 Access to those documents is to be confined to counsel and solicitors instructing counsel in the proceedings at this point

3 Refuse access to the remaining documents, subject to the agreement that has been reached on behalf of the protected confider for access to the material produced by the police, leaving aside from that order those documents produced yesterday from the police containing the material provided by the psychologist

4 The parties may have liberty to re-agitate this question when the Crown has given notice as to the use it wished to make of sequelae described by the complainant and observations said to have been observed by her mother

Catchwords:

CRIME — Child sex offences — Sexual intercourse with child <10

CRIME — Sexual offences — Act of indecency

CRIMINAL PROCEDURE — Sexual assault communications privilege — Applications for leave

CRIMINAL PROCEDURE — Subpoena — Objection to production of material — Sexual assault communications privilege

Legislation Cited:

Crimes Act 1900

Criminal Procedure Act1986

Category:

Principal judgment

Parties:

Regina (Crown)
Daniel Bowden (Accused)

Representation:

Mr A Morris (Crown)
Mr J Brock (Accused)
Ms N Evans (Protected Confider)

Solicitors:
Ms A Ey (Crown)
Mr R Layton (Accused)

File Number(s):

2019/00174404

EX TEMPORE REVISED JUDGEMENT

Introduction

1. There is a notice of motion before me in the matter of Daniel Bowden seeking access to documents, produced in respect of a complainant in the prosecution of the accused by the Commissioner of Police, psychologist Kathryn Newbury, and psychiatrist Dr Abdul Khan. The order is sought pursuant to s 298(2) Criminal Procedure Act1986.

The Allegations

2. The accused was previously arraigned before his Honour Judge Hunt, charged with two offences.

3. Count 1 alleges that the accused between 1 January 2001 and 31 January 2001, at Kurnell in the State of New South Wales, did have sexual intercourse with TY, a child then under the age of ten years, namely four or five years. This offence is contrary to s 66A Crimes Act 1900.

4. The second offence is charged contrary to s 61O(2) Crimes Act1900. The charge alleges that the accused between 1 January 2001 and 31 December 2003, at Kurnell in the State of New South Wales, did commit an act of indecency towards RY, a child then under the age of ten years, namely 6, 7, 8 or 9 years.

5. The complainants are sisters.

The Application

6. The affidavit in support of the application, affirmed by solicitor Ruth Leighton acting for the accused, outlines the history of the proceedings and the service of a brief of evidence on 30 July 2019, including two statements made by TY on 11 January and 27 June 2019 respectively. The affidavit refers to the content in the statements representing contact with the psychologist Ms Newbury and attendances upon Dr Abdul Khan.

7. On 6 April 2020 consent orders were made for the production to the Court of several documents which are now before me.

8. It is conceded in the affidavit and submissions by counsel that the records would attract sexual assault communication privilege under Part 5, Division 2 Criminal Procedure Act 1986. Access is sought to the documents. It is noted that access to the documents does not thereafter allow use of the material in the proceedings without the leave of the Court.

The Crown Case

9. The Crown case statement provided identifies the accused, aged 19 at the time of the alleged offences, and the complainants, sisters to each other and with two half siblings.

10. Included in the material produced by the police is the bail report prepared in respect of the complainants’ father, EY, who was charged with a sexual assault upon one of the older half siblings of the complainants.

11. The offences occurred allegedly at an area known as Boat Harbour on the Kurnell peninsula where there were about 20 shacks leased by different tenants and used by them and their families. The complainants’ parents leased one of the shacks. They were friendly with other tenants. The accused at the time of the alleged offences worked in an unofficial capacity as a ranger at Boat Harbour where he would collect visitor’s money at the entrance gate. He signed an official contract of employment in 2015 and was still employed there when the matters were reported to the police. He was known to the parents and to the complainants; it is alleged that from time to time he would provide sweets or small gifts to the children although it is not at this stage known or suggested I anticipate that this had any connection with the offences charged. This is not a concluded view, for it will be a matter for the Crown to formulate the approach to be taken in the presentation of the case it wishes to advance.

12. There was a fire pit in this area where the tenants would gather together to drink and socialise. The gates to the area were locked at night. After that the accused would come and join with the socialising.

13. The allegation of sexual intercourse with a child under ten alleged in respect of TY occurred, it is said, when there was a party around the fire at the front of one of the shacks. The complainant engaged in a game of “hide and seek” and took the role of the seeker or finder. When she was near an outdoor bathroom it is alleged the accused approached her and asked “Can I please try something?” or “I want to see something”. There is some confusion in the mind of the complainant as to what he there said, but she asserts that he also asked specifically to touch her vagina. She questioned what he wanted and why. It is alleged that the accused begged and suggested that she “would have fun too”, or words similar. She eventually submitted, thinking, it is said in the Crown case statement, that she would be doing what he wanted. It is alleged that he stood behind her, placed his right hand down to beneath her underwear from behind over her shoulder. He rubbed the outer part of her genitalia. He asked her whether it felt good. She responded in words to the effect, “Why, no, I don’t get it” and “Why do you want to touch that?” She asked if she could go to join her friends. He said that he would allow her to leave when he tried one more thing, whereupon he digitally penetrated her vagina. That is the conduct upon which count 1 is brought.

14. Count 2, is in respect of RY who recalls being at the beach in this area. She was, she thinks, wearing swimmers and needed to use the toilet. She left the beach area and the people there and went to a cabin which was not in use. She described it in terms consistent with it being a container. The accused is alleged to have followed her. She went to use the toilet. The door was not closed. He stood and watched her as she urinated, asked her if he “could touch it” and made a gesture with his hand open and his palm facing upwards, and his arm leaning in the direction of the complainant’s genitalia. The complainant said no. The accused did not touch her or try to touch her, other than to the extent indicated. She returned to the beach and joined her friends.

15. Neither complainant made any disclosure of this conduct near to the time when it is said to have occurred.

16. The first person recorded as having heard a complaint is the psychologist Ms Newbury. TY disclosed to her sister her allegation in late 2018, whereupon RY made her disclosure in response. The complainant’s mother attributed to TY a pattern of conduct, to which I shall refer with regard to the statements that I have.

17. There was a pretext call on 5 April 2019 by TY. I have been given access the transcript. It is entirely exculpatory. There is no representation made by the accused which could to any extent amount to an admission. The representations made by the complainant to him were in such terms that for my part I would be troubled if that document in its present form was to go before the jury because of the way it is structured. It implies an onus upon the accused to have responded to the terms of the allegation that she made to him.

18. The accused was arrested in due course. He was made aware of the allegation in the course of an electronically recorded interview. His was a qualified participation in which he made limited admissions regarding contact and association with the complainants and others at this location. Thereafter his mother communicated that neither she nor the accused would participate in any further interview process.

19. Statements were made by TY on 11 January 2019 and then on 18 June 2019; the first includes the allegation of misconduct. The first statement extends into significant areas of challenges that the complainant TY asserted impacted throughout her life. At para [16] she confirmed that she told no one of the conduct alleged of the accused until the psychologist Ms Newbury, upon whom she was attending in 2015. At para [17] has the following [sic]:

“The abuse that I endured is clearly linked to the manifestation of severe and complex mental illness I suffer now, as a child with internalised suffering (due to instances I had been painfully ill without any medical help or even basic medicine and safe drinking water, etc)’ and fear of abandonment I internalised this trauma for as long as I could until it creeped (sic) into any hope of making progress in life.”

20. At para [18] she made reference to suicidal ideology for as long as she could remember, feelings of worthlessness, a sense of being ugly, of being an inconvenience or annoyance, guilt from telling people that she was hungry, a sense that was triggered by children mentioning that they were hungry or that they wanted something to eat, a sense of pain for them in response to which she would provide anything that she could, and on the verge of tears if she found out that they had been hungry for some time. She conceded that she did not go without as a child, but felt that just asking for things would cause people to get upset with her.

21. At para [19] she spoke of her age when she became curious about romantic relationships, of how she came to see how damaged her brain was. She constantly felt indifferent to the idea of wanting a partner, with a sense of violation, notwithstanding which she would force herself to overcome her fear, her sense of feeling ill or disgust if anyone touched her in any remotely sexual way, and various other responses. She said this stemmed from her sense of intimacy which involved shame, hate, violation and loss of autonomy. She said any sexual experience would leave her feeling numb and disassociated and dirty and used and eventually abandoned.

22. She referred to her psychological management over the years, and communications with her half-sister Elizabeth, in early 2015, which led to the recommendation to attend upon a general practitioner leading thereafter to a treatment plan with the psychologist.

23. The second statement provides a series of benchmarks against which she has attempted to identify when the events upon which the prosecution is brought occurred.

24. RY made her statement on 11 January 2019. She represented in para [20] that she did not tell anyone what happened until her sister TY told her in 2018, not long before the police investigation began; there is reference to conversation with her mother.

25. Their mother made two statements, one on 18 December 2018 and the second on 2 March 2020. On 18 December 2018 she described the arrangements where the family would attend Boat Harbour and make use of a cabin there. The marriage to the father of the two girls ultimately failed. She gave a description of her contact with the accused and her perception of him. She spoke in para [18] of TY being a happy baby, but that at seven or eight years of age she changed. She was never happy, constantly complained of sickness, did not want to go to Boat Harbour, and did not want to leave the shack, calling it her nest where she wanted to remain. She was sensitive to noise. She withdrew socially, and did not want to play with friends. She would be left in the car if they went to the beach. She took TY to various doctors, none of whom could find anything wrong with her. She had skin problems. She did not ever want a boyfriend or go out to nightlife. She began seeing her counsellor Kathryn Newbury in 2015. She received a call from the psychologist who expressed grave concerns about the complainant’s mental health and said “T needs to speak with you”.

26. Paragraph [25] is in the following terms [sic]:

“Later this afternoon I spoke with T. I don’t recall the exact words, but it was something like, ‘we were playing hide and seek, Danny said he need to speak to her about something and took her aside and that he put his hand down her pants’. I asked her if it was only the one time, she told me that he tried to take her aside a number of times after however she avoided him. I asked her did he do anything else. She just avoided answering.”

27. There is then reference to the conversation with RY. The event was not mentioned again. At para [26] the mother explains why she did not bring the matter to the attention of the police. In the absence of other witnesses to support the allegation she did not think that there was enough to go to the police with it. There is reference to steps that were taken thereafter.

28. The statement made on 27 March 2020 provides some further information which does not require elaboration at this point. It assists in the identification of benchmarks against the occasions when is said these events occurred.

The Subject Documents

29. The documents produced by the New South Wales Police in response to the orders made have been redacted, but not, I would say, significantly. The redactions are with regard to references to the psychiatric and psychological management. The balance of the material has been accessed. A further bundle from the police was produced late in this application upon the mistaken belief of the police officer that all relevant documents had been provided.

30. The material includes an expert’s certificate on 18 June 2019 by the psychologist Kathryn Anne Newbury. This apparently was inadvertently served upon the accused and upon realisation that it would be caught by these provisions the document was returned or destroyed by the Crown and those representing the accused to avoid any suggestion of impropriety or breach of these provisions. However, the original documents were held as part of the police material and thus copies have been provided to the Court.

31. The expert’s certificate includes by way of attachment the notes raised and provided by the psychologist but with redactions. The material from the psychologist which is replicated in the later bundle to which I referred includes her patient notes. The first attendance was on 30 May 2016 and the complaint, to which there is reference elsewhere, was on 7 June 2016 in session two. The record of this complaint I intend to announce as such but with no further information. It is in a passage in the following terms:

“T described her mother would [unreadable] to spend time with people living at Kurnell and that she was taken there as a child. T described how she was sexually abused at this time.”

32. There is a treatment plan, and a questionnaire included in the material. I do not intend to make any further reference to it.

33. The material produced by Dr Kahn includes transcripts of his patient notes and reports written from 29 May 2018 to general practitioners from whom she was referred. The first attendance was on 31 May 2018. It was by way of a communication from Sutherland Community Mental Health Team. The first attendance by the complainant was on 5 June 2018. The most recent 18 February 2020

Consideration

34. My first concern is what use, if any, the Crown would intend to make of the description given of the complainant by her mother and the representations made by the complainant concerning her challenges after the alleged offence. I here refer to the complainant TY.

35. If it is intended that the Crown would advance any of that material in the evidence to be placed before the jury this issue could be agitated once again before the trial judge, who would then be left with the task of deciding whether or not to make available the material for consideration by those representing the accused and the Crown. If the Crown is not intending to make use of any of those representations which I have summarised from the complainant’s mother and the complainant TY concerning her change in behaviour and her described sequelae, it would be appropriate in my view for the trial judge to consider afresh this application on behalf of the accused.

Decision

36. As matters stand, however, I am satisfied that the legislation proscribes the access to this material. There is no question that the offences alleged fall within the definition of sexual assault offence, provided in s 295 Criminal Procedure Act1986. There is no question that the documents that are sought, and specifically those parts of the documents which have been redacted, record protected confidences.

37. I have brought to mind the definition of a protected confidence in s 296 of the Act. I should quote it:

1. “In this division –

2. “protected confidence” means a counselling communication that is made by, to or about a victim or alleged victim of a sexual assault offence.

3. A counselling communication is a protected confidence for the purposes of this division even if it –

1. was made before the acts constituting the relevant sexual assault offence occurred or are alleged to have occurred, or

2. was not made in connection with a sexual assault offence or alleged sexual assault offence or any condition arising from a sexual assault offence or alleged sexual assault offence”.

4. ...

5. ...

6. ...

38. Section 298 provides:

1. “Except with the leave of the court, a person cannot seek to compel (whether by subpoena or other procedure) any other person to produce a document recording a protected confidence in, or in connection with, any criminal proceedings.

2. Except with the leave of the court, a document recording a protected confidence cannot be produced in, or in connection with, any criminal proceedings.

3. Except with the leave of the court, evidence cannot be adduced in any criminal proceedings if it would disclose a protected confidence or the contents of a document recording a protected confidence.”

39. Section 298A provides that a victim cannot be required to identify a counsellor. This is relevant to documents that have been produced by the Commonwealth agency Services Australia [Medicare]. I have reviewed this material. I agree with the submission made on behalf of the accused that this bundle of documents is not caught by this provision. The complainant has not been required to identify a counsellor.

40. There are a range of medical or healthcare professionals to which there is reference in that material. There are other medical issues that have afflicted this complainant, which might have connection with protected confidences, but I do not know definitively whether that is so or should be found to be so.

41. I will allow access to the documents produced by Services Australia [Medicare]. I would urge the parties to be vigilant to ensure that the healthcare professionals to whom the complainant was referred do not have documents that would contain protected confidences, notwithstanding that they might have been in parallel consideration with medical or physical health issues

42. The proscription provision is contained in s 298 of the Act. Section 299D provides for the approach to be taken when determining whether to grant leave. Sub section (1) provides:

“The court cannot grant an application for leave under this Division unless the court is satisfied that –

1. the document or evidence will, either by itself or having regard to other documents or evidence produced or adduced or to be produced or adduced by the parties seeking to produce or adduce the documents or evidence, have substantial probative value, and

2. other documents or evidence concerning the matters to which the protected confidence relates are not available, and

3. the public interest in preserving the confidentiality of protected confidences and protecting the principal protected confider from harm is substantially outweighed by the public interest in admitting into evidence information or the contents of a document of substantial probative value”.

43. Each and every one of these must be established before leave may be granted.

44. Sub section (2) provides:

“Without limiting the matters that the court may take into account for the purposes determining the public interests in preserving the confidentiality of the confidences and protecting the principal protected confider from harm, the court must take into account the following –

1. the need to encourage victims of sexual offences to seek counselling,

2. the effectiveness of counselling is likely to be dependent on the maintenance of the confidentiality of the counselling relationship,

3. the public interest in ensuring the victims of sexual offences received effective counselling,

4. that the disclosure of a protected confidence is likely to damage or undermine the relationship between the counsellor and the counselled person,

5. where the disclosure of the protected confidence is sought on the basis of an discriminatory belief or bias,

6. that the adducing of the evidence is likely to infringe a reasonable expectation of privacy.

45. Sub section (3) provides:

“For the purposes of determining an application for leave under this division, the court may permit a confidential statement to be made to it by or on behalf of the confidential principal protected confider by affidavit specifying what harm the confider is likely to suffer if the application for leave is granted”.

46. S 299D(4), (5) and (6) are not significant here.

47. I have taken into account the matters itemised in s 299D(2). I have noted subs (2)(e) but I am satisfied that there is no basis upon which to find a discriminatory belief or bias that underpins the application for access.

48. I am satisfied that the considerations itemised in paras (a), (b) (c) (d) and (f) are apposite.

49. I am concerned to ensure the protection of the relationship between the people attending upon the complainant and the complainant.

50. I am satisfied that the material that I am declining to expose for access does not have substantial probative value upon the issues in the case, as I understand them in the material before me.

51. There is evidence concerning matters important to the accused available from other documents in the material that has been provided by way of the statements from the complainants and their mother and from the police documents that have been produced.

52. I am not satisfied that the public interests in preserving the confidentiality of these confidences and protecting this principal protector from harm is substantially outweighed by the public interest in admitting into evidence information or the contents of the documents, even if it were to be found to have substantial probative value. This must be a qualified view in the circumstances, because of the extent to which there has been already disclosure by the complainant in her statement and represented observations by her mother.

Orders

53. Accordingly, in response to the application made on behalf of the accused I grant access to the parties to the documents received from Commonwealth agency Services Australia [Medicare].

54. The access to those documents is to be confined to counsel and solicitors instructing counsel in the proceedings at this point.

55. I refuse access to the remaining documents, subject to the agreement that has been reached on behalf of the protected confider for access to the material produced by the police, leaving aside from that order those documents produced yesterday from the police containing the material provided by the psychologist, which in large measure effectively replicate what was produced by her; that should not be made available for access.

56. The parties may have liberty to re-agitate this question when the Crown has given notice as to the use it wished to make of sequelae described by the complainant and observations said to have been observed by her mother. To that end I will require the Crown to turn its mind to that issue within the next five days and notify those representing the protected confider and the accused so that they can consider their position.

57. I will return all of the material I have been provided to the court file. I should note that I had access to what were careful and appropriate submissions made on behalf of the accused by Mr Brock. I would note that, as on all such applications, Mr Brock was running his application without the benefit of access to documents with which he might have been able to make more thorough and detailed submissions.  Notwithstanding, anticipating what might be matters of significance he, in my perception of things, provided the Court with all that is needed for the decision that it has reached and I thank him for the assistance.

58. I will simply finish with the parties having liberty to apply.

**********

Amendments

09 May 2022 - Fix paragraph numbering

Decision last updated: 09 May 2022