R v BYRNE - [2007] SADC 6

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v BYRNE
[2007] SADC 6
Reasons for Ruling of His Honour Judge Clayton
1 February 2007
EVIDENCE - FACTS EXCLUDED FROM PROOF
PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - PRODUCTION AND INSPECTION - GROUNDS FOR RESISTING PRODUCTION - PUBLIC INTEREST IMMUNITY
The Tea Tree Medical Centre produced a file of documents to the Court in response to a subpoena served by the solicitors for the accused.
When the matter was called on for trial counsel for the accused then applied for leave to inspect the documents which had been produced. The parties agreed that, as a last resort, the trial judge should inspect the documents for the purpose of determining whether the communications were protected communications as defined in Division 9 of the Evidence Act 1929.
HELD:
(1) Communications made after the disclosure of the trauma were made for the purpose or in the course of psychiatric or psychological therapy and fall within subparagraph (a)(ii) of the definition in s67D of communications made in a therapeutic context.
(2) Communications made prior to the first reference to the alleged offending were also made in a therapeutic context and do attract the protection of Division 9.
(3) Records of doctor’s diagnosis, prescriptions and the issue of certificates are not protected communications and can be disclosed.
Evidence Act 1929 ss 67D & 67E, referred to.
Question of Law Reserved (No 1 of 2000) (2000) 77 SASR 344; W, GC v Magistrates Court of South Australia & Anor [2005] SASC 214, considered.

R v BYRNE
[2007] SADC 6

The Tea Tree Medical Centre has produced a file of documents to the Court in response to a subpoena served by the solicitors for the accused. The documents were forwarded to the registry rather than by means of personal attendance at the court in compliance with note 5 in the schedule to the subpoena. At the time of production the Tea Tree Medical Centre did not object to the file being inspected by the parties in the way discussed in note 6 to the schedule.
At two directions hearings prior to the trial separate judges drew the attention of counsel to the possibility that some of the documents may be protected by the provisions in Division 9 of the Evidence Act 1929. The issue was left to be determined by the trial judge.
When the matter was called on for trial the arraignment of the accused was postponed as a consequence of the filing of a new Information by the Crown. Counsel for the accused needed to obtain instructions. Counsel for the accused then applied for leave to inspect the documents which had been produced by the Tea Tree Medical Centre.
The parties are in agreement that, as a last resort, I should inspect the documents in the way contemplated in Question of Law Reserved (No 1 of 2000)[1] for the purpose of determining whether the communications are in fact protected (per Lander J at paragraphs 78 to 80 and 98). I have proceeded to do that.
[1] (2000) 77 SASR 344
Section 67D of the Evidence Act 1929 provides that 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;
(b)the communication is made in circumstances that give rise to a duty of confidentiality or a reasonable expectation of confidentiality.
Section 67E provides:
(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.
The consequence of section 67E(3) would appear to be that the court has an obligation to ensure compliance with section 67E(1) even if no objection is taken to the disclosure of the communication. Otherwise waiver of the immunity would occur by default.
The first thing to be noted about Division 9 of the Evidence Act 1929 is that it is confined to communications and is not directed at documents. Of course a document may contain evidence of a communication but it may also record other matters which do not amount to a communication.
From a practical point of view if a judge is asked to make a ruling without the benefit of submissions from either the person to whom the records relate or the owner of the records the judge must consider the documents in the absence of any assistance from counsel with insight into the contents of the documents. The documents obviously cannot be disclosed to counsel for the prosecution or the accused and the usefulness of any submissions they may make must therefore be limited.
The word “communication” is defined in the Macquarie Dictionary 2^nd revised edition to mean amongst other things:
1. the act or fact of communicating; transmission
2.imparting the interchange of thoughts, opinions, or information by speech, writing, or signs
3.that which is communicated or imparted
4.a document or message imparting views information etc
With those definitions in mind I have inspected the documents produced by the Tea Tree Medical Centre.
Counsel referred me to the decision of the Full Court in W, GC v Magistrates Court of South Australia and Anor[2]. In that case the court was required to consider specific issues. Layton J said by way of obiter:
The therapeutic context would include a victim or alleged victim under subparagraph (a)(ii) even if the victim or alleged victim had not disclosed the occurrence of a sexual offence until some time after the alleged occurrence of such offence and even after therapy had begun without the therapist being aware of such an offence. The communication under s 67D(a)(ii) may be protected retrospectively to any time after the date and time of the sexual offence. The scope of this protection recognises the fact that persons who are the victims of sexual offences may not initially disclose to anyone the occurrence of such an offence even a therapist, until such time as they feel sufficiently confident to do so. It is well recognised that his disclosure may not occur until years after a sexual offence. The purpose of the sections is to ensure that persons who are the subject of sexual offences are able to seek and receive appropriate therapy without there being an impediment to them seeking treatment by reason of an inappropriate risk of their personal circumstances being disclosed in legal proceedings. This purpose is in part expressed in s 67F(6)(a) in the context of weighing considerations by the Court when deciding whether to grant leave to adduce evidence in other legal proceedings.
[2] [2005] SASC 214
I was told by counsel that the alleged victim said in a statement that he started seeing Dr Mattner on 8 November 2001 and continued seeing various psychiatrists and psychologists until 2006 (T 16-31).
The documents produced by the Tea Tree Medical Centre include one described as “Patient Medical History”. It is a computer printout which is directed to the District Court. It is obviously not an original document but was prepared for the purposes of compliance with the subpoena. I have assumed that the records of the Tea Tree Medical Centre are kept on a computer and that the printout is an accurate record of the Centre’s records. I leave it to counsel to determine whether they wish to pursue the matter.
The Patient Medical History records the date of consultations, the history obtained, the diagnosis, any medication prescribed and other matters as to which I would prefer not to guess.
The first consultation with the alleged victim was on 28 August 2000. It related to a problem with a toe. No question of a communication made in a therapeutic context arises in the case of that consultation.
There were then a number of consultations during 2001 and 2002 at which a diagnosis of depression was made, but the history obtained does not refer to the alleged sexual offences. Then, at one consultation, reference was made by the alleged victim to the fact that he was sexually abused as a child. I have deliberately kept my reference to the records vague.
The question arises as to whether communications made prior to actual disclosure of the alleged sexual offences are protected. I am conscious of the comments made by Layton J.
There is no question that the requirements of subparagraph (b) of the definition of “therapeutic context” are satisfied in that the disclosure was made in circumstances that give rise to a duty of confidentiality.
Because the trauma was not disclosed the communication cannot be said to have been made to assess the nature and severity of the trauma so that the first limb of subparagraph (a)(i) of the definition of “therapeutic context” is not satisfied.
It could be argued that the communications were made to enable a therapist to assess the nature and severity of the “consequent psychiatric, psychological or emotional harm”, even though the trauma itself had not been disclosed, so that the second limb of subparagraph (a)(i) was satisfied. However, subparagraph (a)(ii) which extends to communications “for the purposes, or in the course, of psychiatric or psychological therapy provided to the victim or alleged victim” is itself wide enough to cover such communications. The difference is that subparagraph (i) is concerned with the assessment of the trauma and consequent psychiatric, psychological or emotional harm whereas subparagraph (ii) is concerned with psychiatric or psychological therapy.
I have no difficulty in finding that Dr Mattner was a counsellor or therapist within the definition of those terms in section 67D.
I find that the history provided to Dr Mattner by the alleged victim before disclosure of the actual trauma was a communication made for the purposes, or in the course of psychiatric or psychological therapy provided to the alleged victim. I find that the communication does fall within subparagraph (a) of the definition of “therapeutic context” so that the communication was made in a therapeutic context. I note that subparagraph (a)(ii) refers to psychiatric or psychological therapy generally and is not restricted to psychiatric or psychological therapy provided to the victim consequential upon the trauma. ** While there may be other factors contributing to a psychiatric or psychological illness it would be impossible to isolate the contribution of the trauma itself. For that reason and for the reasons stated by Layton J in the passage from her reasons which I have referred to I find that the communications made prior to the first reference to the alleged offending were made in a therapeutic context and do attract the protection of Division 9. I find that communications made after the disclosure of the trauma were also made for the purpose or in the course of psychiatric or psychological therapy and fall within subparagraph (a)(ii) of the definition. In addition, I find that the history provided was a communication made to enable a counsellor or therapist to assess the nature and severity of the trauma and the consequent psychiatric, psychological and emotional harm so as to fall within subparagraph (a)(i) of the definition
That is, I find that all of the history recorded by Dr Mattner in the Patient Medical History was a protected communication.
To the extent that the Patient Medical History records matters such as the doctor’s diagnosis, prescriptions and the issue of certificates, I find that those matters are not a protected communication and can be disclosed. Some machinery would need to be devised for the purpose of blanking out that part of the Patient Medical History which contains protected communications.
I turn now to consider the other documents which were produced.
There are a number of copies of medical certificates provided by Dr Mattner to Centrelink. One of the boxes in the Centrelink form requires a list of symptoms. That list may require disclosure of therapeutic communications. I find that the information in that box is protected and should not be disclosed. Subject to the information in that box being blanked out I find that the remainder of the information in the medical certificates is not protected and can be inspected.
Other documents which can be inspected are pathology reports dated 26 July 2006 and 11 December 2001 (three), documents relating to the clinic’s payment procedure (two) and general patient information.
I hold that correspondence between Dr Mattner and a psychologist reveal therapeutic communications and are protected. I also hold that a note from a medical officer of the Modbury Public Hospital to Dr Mattner reveals a therapeutic communication and is protected. So is a one-page document which I describe as a flow chart describing the alleged victim’s thoughts. Five letters from Dr Mattner to the Psychiatric Outpatients Department and a letter of referral to a psychologist reveal therapeutic communications and are protected.
A letter addressed “to whom it may concern” reveals therapeutic communications and should be protected. Similarly, a letter from Tea Tree Medical Centre to the South Australian Housing Trust records therapeutic communications from the alleged victim and is protected.
Because counsel have not had the opportunity to peruse the documents my findings should be regarded as tentative. I have prepared this document to enable counsel to make submissions as to whether my proposed rulings should be made final.