R v C, Dr - [2006] SASC 307

SUPREME COURT OF SOUTH AUSTRALIA
(Applications Under Various Acts or Rules: Criminal)
R v C, DR & ORS
[2006] SASC 307
Reasons for Ruling of The Honourable Justice Sulan
5 October 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - PARTICULAR MATTERS - OTHER INSTANCES OF INTERFERENCE
Application for leave to appeal by a non-party to the criminal proceedings who sought to set aside a subpoena - whether a right of appeal exists against an interlocutory ruling refusing to set aside a subpoena - whether subpoenaed material served a legitimate forensic purpose - whether s 64D of the South Australian Health Commission Act 1976 prohibits the production of the documents the subject of the subpoena - leave to appeal granted on grounds relating to s 64D of the South Australian Health Commission Act 1976 - leave to appeal refused on ground of whether subpoenaed material served a legitimate forensic purpose.

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION - MISCELLANEOUS MATTERS - SOUTH AUSTRALIA - CASE STATED AND REFERENCE OF QUESTION OF LAW
Applicataion to have questions reserved for consideration and determination by the Full Court pursuant to s 350(2)(b) of the Criminal Law Consolidation Act 1935 - whether a trial Judge's determination that subpoenaed material has a legitimate forensic purpose raises an appropriate question to be reserved - application granted.
Criminal Law Consolidation Act 1935 s 348, s 350, s 350(1a), s 350(2)(b), s 352, referred to.
Application for Reservation of Questions of Law (No 2 of 1999) (1999) 106 A Crim R 423; Amand v Home Secretary [1942] AC 147; Carter v Hayes (1994) 61 SASR 451; Maddison v Goldrick [1976] 1 NSWLR 651; R v Garrett (1988) 49 SASR 435; R v Saleam (1989) 16 NSWLR 14; Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1, considered.

R v C, DR & ORS
[2006] SASC 307
Criminal

SULAN J: This is an application by the Southern Adelaide Health Service Incorporated (“SAHS”) for leave to appeal against a ruling I made prior to the jury being empanelled concerning the setting aside of a subpoena. In addition, the Attorney-General sought an order pursuant to s 350(2)(b) of the Criminal Law Consolidation Act 1935 (“the CLCA Act”) requiring me to reserve questions for consideration and determination by the Full Court.
Background
Daniel Ian McKenna and Patrick Joseph McKenna, two of the accused, issued the subpoena on 22 December 2005. The subpoena sought the production of documents from Flinders Medical Centre (“FMC”). FMC, which was incorporated under the South Australian Health Commission Act 1976 (“the Act”), was dissolved from 1 July 2004, by proclamation of the Governor on 26 February 2004. An incorporated hospital, Southern Adelaide Health Service Incorporated was established to take over the functions of providing health services by FMC and two other bodies from 1 July 2004. During the argument upon the subpoena no issue was taken with the error in naming FMC and not SAHS in the subpoena.
There were five accused who were jointly charged with the murder of Adam Prestwood Paul Ballard on 25 July 2003 at Glenelg North. The prosecution alleged that the deceased was assaulted by one or more of the accused, and that, during the assault, he was hit with a crowbar on a number of occasions.
The deceased was taken to the emergency section of SAHS (then FMC) at approximately midnight on 25 July 2003. The deceased complained of pain and difficulty in breathing. He remained under observation for approximately three hours and was then discharged. The deceased died at his home at approximately 7am on 26 July 2003.
The opinion of the pathologist, who conducted the post-mortem examination, was that the deceased died of blood loss due to blunt force to his lower chest and abdominal trauma. He had suffered a ruptured spleen and there was a large volume of blood in his abdominal cavity. The injury was consistent with him having been struck by an object such as a crowbar or tyre lever. The pathologist concluded that he had suffered shock from blood loss which led to his death.
Subsequent to the death of Adam Ballard, SAHS (then FMC) conducted an internal investigation. The investigation was conducted by Professor David Ben Tovim, a member of the Clinical Review Committee (“the CRC”). The CRC was a committee established by SAHS (then FMC) which included, as one of its functions, the investigation of adverse incidents within the hospital.
A method of investigation of such adverse incidents was to conduct a Root Cause Analysis (“RCA”). An RCA seeks to identify causes of adverse events within the hospital. Professor Ben Tovim and persons selected by him conducted an RCA into the events surrounding the death of Mr Ballard.
On 2 August 2006, the accused William Anthony Cornellius Heeremans was convicted of the murder of Adam Ballard. The four co-accused, C, DR, Daniel Ian McKenna, Patrick Joseph McKenna and S, MJ, were acquitted.
The subpoena sought the production of the following documents from SAHS:
(a) All documents, memoranda and communications arising from or relating to the death of Mr Adam Ballard on 27 July 2003 and subsequent inquiry.
(b) All notes, memoranda, documents and communications in respect of an inquiry held by the Flinders Medical Centre into the death of Mr Adam Ballard and into the handling of the admission by the Flinders Medical Centre staff.
The Attorney-General for the State of South Australia sought leave to intervene in the proceedings in support of SAHS as the proceedings raised matters of public importance.[1] Leave to intervene was granted. The Attorney-General and SAHS made an application on the voir dire to have the subpoena set aside.
[1] Leave was sought pursuant to s 9(2)(a) of the Crown Proceedings Act 1992.
The Solicitor-General, who appeared for SAHS and the Attorney-General, submitted that there were two grounds upon which the subpoena should be set aside. First, there was no legitimate forensic purpose and, in particular, it was not ‘on the cards’ that the material produced in answer to the subpoena to SAHS would materially assist the defence, and the material sought was, therefore, irrelevant. Secondly, it was submitted that s 64D of the Act prohibits the production of the documents the subject of the subpoena. It was argued that the documents comprised confidential information, as defined in s 64D of the Act, because the information was disclosed to a member of the CRC and to others who were providing technical assistance to the CRC, for the purposes of assessing and improving the health service provided by the Emergency Department of SAHS (then FMC) and elsewhere in SAHS (then FMC).
Section 64D(3) of the Act provides:
Subject to this section, a person must not in any circumstances (including proceedings before any court, tribunal or board) divulge confidential information obtained directly or indirectly as a result of a disclosure made pursuant to this section.
Pursuant to this section, confidential information (which is information relating to a health service in which the identity of the patient or person providing the services is revealed) may be disclosed to a person or the members from time to time of a specified group or body, authorised by the Governor, by instrument in writing, to have access to the information for a specified purpose. The CRC was an authorised body.
The Solicitor-General submitted that if the subpoena was not set aside and if production of the documents sought was not prohibited by s 64D of the Act, then public interest immunity applied to the documents in question to protect their disclosure.
I inspected the documents and upheld the claim for public interest immunity and declined to make an order for the production of the documents. I concluded that there was no material contained in the documents which provided information beyond that which had been disclosed to the defence in the material provided to them as part of the prosecution evidence.
In respect of the other two grounds, I determined that the persons conducting the RCA into the death of Mr Ballard were not authorised pursuant to s 64D of the Act and the information was therefore not protected by s 64D of the Act. In relation to the relevance of the information, I found that the documents sought were likely to contain material relevant to the question of causation.
Application for leave to appeal
The Solicitor-General sought leave to appeal the interlocutory ruling. Section 352 of the CLCA does not permit appeals against interlocutory orders in criminal matters, with the exclusion of issues antecedent to trial.[2] This appeal does not raise an issue antecedent to trial. In R v Garrett,[3] Cox J, with whom King CJ and Jacobs J agreed, held that s 50 of the Supreme Court Act 1935, which provides a right of appeal to the Full Court against decisions of judges and masters, subject to leave being granted by the Judge or the Full Court, does not apply to interlocutory or ancillary orders made in criminal matters.
[2] Section 348 CLCA provides that an issue antecedent to trial means a question (whether arising before or at trial) as to whether proceedings on an information or a count of an information should be stayed on the ground that the proceedings are an abuse of process of the court.
[3] (1988) 49 SASR 435.
Garrett had appealed to the Full Court against the refusal of a Supreme Court judge to stay a rape trial as an abuse of process and to make other procedural orders. Cox J concluded that there was no right of appeal from an interlocutory order or judgment of a judge in the original criminal jurisdiction of the Court. Cox J said:
The orders of a judge that are excluded from the general provisions of s 50 are those that are made in the original criminal jurisdiction of the Court, and that extends to interlocutory and ancillary orders that are made by the Court prior to a proposed trial as well as those made during the trial itself. To put it another way, at least from the time an information was filed against the appellant – and as to any prior jurisdiction, see Priestley JA’s judgment in Watson v Attorney-General (1987) 8 NSWLR 685 – there were proceedings invoking the Court’s criminal jurisdiction with respect to which an appropriate procedural application could be made, and it necessarily follows that any order made or refused on such an application was made or refused in the exercise of that criminal jurisdiction.[4]
As to what constitutes a ‘criminal cause or matter’ Cox J cited with approval Amand v Home Secretary,[5] in which Lord Wright in the House of Lords said:
The principle which I deduce from the authority I have cited and the other relevant authorities which I have considered, is that if the cause or matter is one which, if carried to its conclusion, might result in the conviction of the person charged and in a sentence of some punishment, such as imprisonment or fine, it is a ‘criminal cause or matter’. The person charged is thus put in jeopardy. Every order made in such a cause or matter by an English court, is an order in a criminal cause or matter, even though the order, taken by itself, is neutral in character and might equally have been made in a cause or matter which is not criminal.[6]
[4] (1988) 49 SASR 435, 446.
[5] [1943] AC 147.
[6] [1943] AC 147, 162.
The Solicitor-General submitted that this application can be distinguished from the application made in Garrett as it relates to the setting aside of a subpoena issued to a third party. He submitted that if the decision in Garrett extended to persons who were not parties to the criminal proceedings, such as a person who is required to answer a subpoena, then that person would have no avenue of appeal in the criminal proceeding, even by way of leave. The Solicitor‑General submitted that the Crown has a right of appeal in criminal matters on sentence or by way of a case stated pursuant to s 350 of the CLCA. An accused has the right of appeal from a conviction. The Solicitor-General submitted that I should allow the application for leave to appeal pursuant to s 50 of the Supreme Court Act 1935 and Rule 94.01 of the South Australian Supreme Court Rules (‘the Rules’). The Solicitor-General submitted that, if leave were granted, the issue of jurisdiction and competency can then be raised by the respondent before the Full Court pursuant to r 95.08 of the Rules, which provides that a respondent can apply to the Full Court for an order dismissing the appeal as incompetent. He urged me to grant leave in order that the Full Court can consider the question of competency. He submitted that the issue of whether a third party has a right of appeal by leave is a question of general importance, and that the issue is arguable.
There appears to be no authority which addresses the question of whether a third party can appeal against an interlocutory order or judgment in a criminal matter. That question raises a matter of general importance. The issue of jurisdiction can be determined by the Full Court. The grounds of appeal relating to the interpretation and application of s 64D of the South Australian Health Commission Act 1976 also raise matters of public importance.
I therefore granted leave to appeal on Grounds 2 and 3 of the original Notice of Appeal dated 20 April 2006.
As to Ground 1, the issue of causation was relevant. The manner in which the deceased died and the circumstances surrounding his death were in issue at the trial. There was a clear forensic purpose in seeking production of the documents the subject of the subpoena. The prosecution had conceded that if the deceased’s injuries had been correctly diagnosed upon admission or, if not so diagnosed, he had remained under observation at the hospital throughout the night, it was likely that he would not have died. There were also issues relating to the time when the deceased sustained the fatal injury. It was a relevant question whether the deceased may have injured himself or exacerbated the existing injury after he was discharged from the hospital. The documents sought may have provided evidence or a line of inquiry that would assist the accused. In my view, Ground 1 is not reasonably arguable. The principles are well settled. I refused leave to appeal.
Case stated
The Attorney-General applied, pursuant to s 350(2)(b) of the CLCA, that I reserve for the consideration of the Full Court questions of law arising out of the acquittal of Daniel Ian McKenna on 2 August 2006.
Section 350 the CLCA provides:
350- Reservation of relevant questions
(a1) In this section-
relevant question means-
(a) a question of law; or
(b) to the extent that it does not constitute a question of law-a question about how a judicial discretion should be exercised or whether a judicial discretion has been properly exercised.
(1)     A court by which a person has been, is being or is to be tried or sentenced for an indictable offence may reserve for consideration and determination by the Full Court a relevant question on an issue-
(a) antecedent to trial; or
(b) relevant to the trial or sentencing of the defendant,
and the court may (if necessary) stay the proceedings until the question has been determined by the Full Court.
(2)     A relevant question must be reserved for consideration and determination by   the Full Court if-
(a)the Full Court so requires (on an application under this section or under another provision of this Part¹); or
(b)the question arises in the course of a trial that results in an acquittal and the Attorney-General or the Director of Public Prosecutions applies to the court of trial to have the question reserved for consideration and determination by the Full Court.
(3)     Unless required to do so by the Full Court, a court must not reserve a question for consideration and determination by the Full Court if reservation of the question would unduly delay the trial or sentencing of the defendant.
(4)     If a person is convicted, and a question relevant to the trial or sentencing is reserved for consideration and determination by the Full Court, the court of trial or the Supreme Court may release the person on bail on conditions the court considers appropriate. (Bolding and underlining are mine)
Note-
1See section 352(2).
The Attorney-General proposed that the following questions be reserved:
1) On the proper construction of s 64D South Australian Health Commission Act 1976, is it sufficient to characterise a disclosure as one that is made pursuant to that section if it was made to a person who was not expressly or individually named in any authorisation by the Governor but who was at the time:
a.a member of a specified group or body; and
b. conducting research into the causes of mortality or morbidity or assessing and improving the quality of specified health services within the terms of paragraphs (a) and (b) of s 64D(1)?
2) If the answer to the first question is no, what other conditions must be satisfied in order for the disclosure to have been made pursuant to s 64D of the South Australian Health Commission Act 1976?
3) Is a person who is trained in the conduct of Root Cause Analysis providing technical or administrative assistance when engaged in the performance of the functions referred to in paragraphs (a) and (b) of s 64D(1)?
4) Should the subpoena to the Flinders Medical Centre have been set aside for the reason that it served no legitimate forensic purpose and, in particular, that it was not “on the cards” that the material produced in answer to the subpoena to the Flinders Medical Centre would materially assist the defence case?
For a question to be reserved for determination pursuant to s 350(2)(b), it must be a ‘relevant question’. A ‘relevant question’ is a question of law or a question about how a judicial discretion should be exercised or whether a judicial discretion has been properly exercised.
In Questions of Law Reserved on Acquittal (No 2 of 1993)[7] King CJ discussed the purpose of s 350 (1a) of the CLCA,[8] as it then stood, which was in similar terms to s 350 (2) of the CLCA, as it presently. Section 350(1a) has been repealed. King CJ said:
The s 350 (1a) procedure is not an appeal in the ordinary sense of that word. It does not seek to reverse or vary the verdict of acquittal. It does, however, challenge a decision or ruling made at trial on a question of law. It necessarily, in my opinion, amounts to a review of the proceedings and it calls in question the decision of the judge on the point of law in question.[9]
[7] (1993) 61 SASR 1.
[8] The previous ss 350-1, which also dealt with cases stated, were repealed by the Criminal Law Consolidation (Appeals) Amendment Act 1995 No 90 which came into effect on 4 January 1996.
[9] (1993) 61 SASR 1, 3.
In Application for Reservation of Questions of Law (No 2 of 1999),[10] Doyle CJ discussed the purpose of s 350 of the CLCA. He said:
The purpose of s 350 is to enable a relevant question to be determined by the Full Court. But for that section, a relevant question could be determined in criminal proceedings and be incapable of review unless there is a conviction and then an appeal by the accused person. That is so because there can be no appeal from an acquittal.[11]
[10] (1999) 106 A Crim R 423.
[11] (1999) 106 A Crim R 423, 429.

As to what constitutes a relevant question in the context of s 350(2)(b), Doyle CJ in Application for Reservation of Questions of Law (No 2 of 1999) said:
Bearing in mind that Parliament has not conferred upon the Director of Public Prosecutions a right of appeal against an acquittal, it is reasonable to assume that Parliament envisaged the use of s 350 mainly in relation to relevant questions that raise an important question of law or a question of law of general application.[12]
[12] (1999) 106 A Crim R 423, 429.
In my opinion Question 4 of the proposed questions neither raises an important question of law nor a question of law of generation application. It is a well-established principle that material which is subpoenaed must be relevant to the proceedings and must serve a legitimate forensic purpose.[13] Moreover, Question 4 does not raise a question about how a judicial discretion should be exercised or whether a judicial discretion has been properly exercised.
[13] Carter v Hayes (1994) 61 SASR 451; Maddison v Goldrick [1976] 1 NSWLR 651; R v Saleam (1989) 16 NSWLR 14.
In my reasons for ruling[14] I explained that the subpoenaed material possessed evidentiary value and hence should not be aside on the ground of relevancy. I said:
The documents sought to be produced by the subpoena must, by their very nature, have a bearing on the issues in the case and potentially have evidentiary value. Causation is a live issue in this case. It may well be, as the Solicitor-General submitted, that ultimately it may not be in dispute. However, at this stage that has not been conceded, and the material sought has clear relevance to that issue.
The investigators interviewed persons who are, or may be, witnesses. The inquiry was to determine the root cause and contributing factors for the adverse event which occurred on 26 July 2003. In my view, the documents sought are likely to contain material relevant to the question of causation. Many of the documents relate to the statements made by witnesses who gave relevant information and who may be called as witnesses, or are potential witnesses.[15]
[14] R v C,DR & Ors [2006] SASC 158.
[15] [2006] SASC 158, 4.
The Solicitor-General submitted that when the Attorney-General or the Director of Public Prosecutions applies to the Court of trial to reserve a question for consideration and determination by the Full Court, the Court of trial is required to so refer the question. In other words, s 350(2) is mandatory in its terms.
If s 350(2) of the Act is mandatory, then the Full Court can determine whether the question is properly one which requires to be answered. Accordingly, I have agreed to include Question 4 in the case stated. However, in my opinion, it is not a question which involves a general principle which has wide application, nor does it raise an important question of law. My decision as to relevance was confined to the facts of the case. No question of principle arose.