R v CT

[2018] ACTSC 69

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v CT

Citation:

[2018] ACTSC 69

Hearing Date:

13 March 2018

DecisionDate:

13 March 2018

Before:

Elkaim J

Decision:

See [10]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application for the Disclosure of Protected Confidence Material – Application to set aside a subpoena

Legislation Cited:

Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 62

Cases Cited:

R v WR(No 2) [2009] ACTSC 110

Parties:

The Queen (Crown)

CT (Accused)

Representation:

Counsel

K Marson (Crown)

B Morrisroe (Accused)

Solicitors

ACT Director of Public Prosecutions (Crown)

Legal Aid ACT (Accused)

File Number:

SCC 258 of 2017

ELKAIM J:

1. This matter has been listed before me to deal with an application by the Crown to set aside a subpoena addressed to the Executive Officer of ACT Health, requesting production of all records held by ACT Mental Health in respect of the complainant. I am also dealing with an application by the accused that leave be granted for the disclosure of protected confidence material produced by that same subpoena.

1. I have decided to give an ex tempore judgment because this matter is also listed this morning before McWilliam AsJ for a pre-trial hearing. My decision will affect the pre-trial hearing, including whether or not it proceeds.

1. The first point to be dealt with is the order in which the matters have proceeded so far. The subpoena seems to have been issued before an appropriate application was made. I have been referred to the decision of Refshauge J in R v WR (No 2) [2009] ACTSC 110 and, in particular, [30] – [34] inclusive.

1. I accept that the proper procedure has not been followed. However, it appears that refinement of the subpoena would enable me to proceed. It would be unfortunate if the subpoena had to be set aside only so it could then be reissued.

1. This then brings me to the question of whether there is a “legitimate forensic purpose” in the issuing of the subpoena. The “forensic purpose” is said to arise from a Record of Interview between the complainant’s father and members of the Australian Federal Police (AFP), annexed to the affidavit of Ms Ramsay, affirmed on 5 March 2018. In particular, I was referred to Questions and Answers 37, 38, 172, 317, 355 and 358. I was also referred to a conversation between the complainant and the police relating to a different matter, contained in AFP Notes (Exhibit A). In those notes, it is said that the complainant told the police that she suffers from schizophrenia, depression and anxiety.

1. Although the Questions and Answers in the Record of Interview do not refer to any diagnosis of schizophrenia, they do suggest that the complainant has some mental health issues. The Crown submits that the issuing of the subpoena is, essentially, a fishing expedition. It appropriately points out that even if the ACT Mental Health documents do not disclose any diagnosis or reference to schizophrenia, this does not mean that there is no such diagnosis. It could well have been made by a private clinician or even a facility outside the territory. It may even be that the complainant has a genuine belief that she suffers from such a mental disorder even if, technically, she does not.

1. Counsel for the accused submitted that the “legitimate forensic purpose” in the issuing of the subpoena is:

To appropriately establish if there are issues relating to [the complainant’s] reliability and credibility stemming from her diagnosis of mental health conditions or lack thereof.

1. It is essentially submitted that if the complainant has been telling people that she has been diagnosed with schizophrenia or a similar condition, and there is no such diagnosis, her credibility may be in issue. Further, if there is in fact such a diagnosis, this may affect the complainant’s capacity to give reliable evidence.

1. I think that the issue of whether there is a “legitimate forensic purpose” in the issuing of the subpoena is very close to the line. There is certainly an air of ‘fishing’ about it, but I think that there is enough to get it over the line. I have reached this conclusion in part because the Evidence (Miscellaneous Provisions) Act 1991 (ACT) provides a safety net. It is now up to me to conduct a preliminary examination of the documents and to determine whether leave should be given for access to the documents within the confines of s 62. Were it not for that safety net, I would probably have refused the application. However, I think that the Evidence (Miscellaneous Provisions) Act provides the complainant with the protection to which she is entitled.

1. Accordingly, I make the following orders:

(a)The subpoena dated 2 March 2018 is amended in the form set out in the Schedule of the document entitled ‘Amended Subpoena’.

(b)The application dated 6 March 2018 is allowed, noting that the subpoena has been amended in the terms set out in the copy of the subpoena document, dated 2 March 2018.

I certify that the preceding ten [10] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: 11 June 2020