R v CT (No 2)

[2018] ACTSC 73

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v CT (No 2)

Citation:

[2018] ACTSC 73

Hearing Date:

On the papers   

DecisionDate:

22 March 2018

Before:

Elkaim J

Decision:

See [12]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application for the disclosure of protected confidence material

Legislation Cited:

Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 61 and 62

Cases Cited:

R v CT [2018] ACTSC 69

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. On 13 March 2018, I granted leave for the disclosure of protected confidence material (R v CT [2018] ACTSC 69).

1. Pursuant to s 61(1) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), it then became necessary for me to examine the documents that had been produced by ACT Health and, in particular, the ACT Mental Health Records from Canberra Hospital.

1. The examination was conducted on 14 and 15 March 2018. A record of my examination has been placed in a sealed envelope on the file. The envelope is not to be opened except by order of the Court.

1. The question that now arises is whether disclosure of all, or some, of the documents should be allowed. Section 62(1) of the Evidence (Miscellaneous Provisions) Act provides that:

62 Giving of leave to disclose protected confidence

(1)After conducting the preliminary examination of the protected confidence evidence, the court may give leave for the disclosure of the protected confidence only if satisfied that –

(a)   for a civil proceeding – the public interest in ensuring the proceeding is conducted fairly outweighs the public interest in preserving the confidentiality of the protected confidence; or

(b)   for a criminal proceeding – the public interest in ensuring an accused person in the proceeding is given a fair trial outweighs the public interest in preserving the confidentiality of the protected confidence.

1. The Court is to have regard to the criteria listed in s 62(3) of the Evidence (Miscellaneous Provisions) Act in reaching its decision.

1. Before stating my conclusions, I think it appropriate to set out the “legitimate forensic purpose” for which disclosure was sought. It was put by the applicant’s counsel in these terms:

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. I have come to the view that disclosure is appropriate, but that it should not extend to all documents produced under the subpoena to ACT Health. Rather, it should only extend to those documents which will enable the accused to pursue a full defence.

1. In respect of the criteria contained in s 62(3), the most important in this case is

   
   

   subsection (a). Subsection (e) is also relevant, but to a lesser extent. I also note that the recipient of the subpoena has not objected to the disclosure of the documents (see subsection…