R v CT (No 2)
[2018] ACTSC 73
•22 March 2018
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:
On 13 March 2018, I granted leave for the disclosure of protected confidence material (R v CT [2018] ACTSC 69).
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.
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.
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.
The Court is to have regard to the criteria listed in s 62(3) of the Evidence (Miscellaneous Provisions) Act in reaching its decision.
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.
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.
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 (g)), nor has any evidence been put before me which would impact upon subsections (c), (f) and (h).
The documents that have been produced under subpoena have, fortunately, been placed in a paginated bundle. It is therefore convenient for me to give leave for the disclosure of stipulated pages. These pages have been photocopied for the purpose of making them available to the Crown and the accused’s legal representatives.
I should make specific reference to pages 55, 56 and 57. These pages do not fall within the scope of the “legitimate forensic purpose” outlined at [6] above. However, the contents of these pages might be seen as being of significant relevance to the accused’s capacity to conduct his defence. They fall squarely within s 62(3)(a).
In addition to the disclosure of some of the documents, I will also impose a condition that the documents, or copies of them, are not to be provided to any person who is not a legal representative of either the Crown or the accused. This does not exclude discussion of the contents of the documents for the purpose of obtaining instructions.
I make the following orders:
(a)In relation to the documents produced under subpoena by ACT Health, disclosure is allowed of the pages numbered: 46, 51, 53, 54, 55, 56, 57, 63, 70, 71 and 78.
(b)The pages to which access has been granted are not to be provided to any person other than the legal representatives of the Crown and the accused. This does not restrict the discussion of the contents of the pages for the purpose of the respective parties of obtaining instructions.
| I certify that the preceding twelve [12] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 11 June 2020 |