R v ED

[2022] NSWDC 142

District Court

New South Wales

Medium Neutral Citation:

R v ED [2022] NSWDC 142

Hearing dates:

27 April 2022

Date of orders:

3 May 2022

Decision date:

03 May 2022

Jurisdiction:

Criminal

Before:

Abadee DCJ

Decision:

See paragraph 114

Catchwords:

CRIMINAL LAW – procedure – alleged historical sex offences – documents produced on subpoena relating to a complainant – sexual assault communications privilege - whether leave should be granted to accused to access privileged documents

Legislation Cited:

Court Suppression and Non-Publication Orders Act 2010 (NSW) s 8(1)(a)

Criminal Procedure Act 1986 (NSW) ss 293, 295, 296, 298, 299, 300

Cases Cited:

ER v Khan [2015] NSWCCA 230

KS v Veitch(No.2) (2012) 300 ALR 181

NAR v PPC1 [2013] NSWCCA 25

PPC v Stylianou [2018] NSWCCA 300

PPC v Williams (2013) 224 A Crim R 555

Texts Cited:

J Brett, The Enigmatic Mr Deakin (2017)

Category:

Principal judgment

Parties:

Office of the Director of Public Prosecutions
Mr ED (accused)
Principal Protected Confider (PPC)

Representation:

Counsel:
Mr M Gleeson for the ODPP
Ms S Jeliba for the accused

Solicitors:
Ms E Blackburn for the ODPP
Ms C Chua for the accused
Mr E Hulme for the PPC

File Number(s):

2020/00147592

Publication restriction:

Name of accused and PPC anonymised pursuant to s 8(1)(a) of the Court Suppression and Non-Publication Orders Act 2010 (NSW)

Judgment

1. The accused[1] is charged on indictment of multiple historical sexual assault offences against multiple complainants going back to the 1970s and 1980s. Two of the charges relate to one particular complainant in relation to two distinct alleged sexual assaults occurring in the discrete periods between 1 September 1986 and 31 December 1986 and between 1 July 1987 and 31 July 1987.

   1. By consent, the accused’s name has been anonymised on the ground that publication may be prejudicial to the administration of justice, having regard to the possibility of potential jurors accessing and reading the judgment and also the implicit identification of the PPC’s identity: Court Suppression and Non-Publication Orders Act 2010 (NSW) s 8(1)(a).

2. Through the course of the criminal proceeding, the accused obtained access to documentation which, putting the matter very broadly, indicated that this particular complainant has had issues concerning her mental health. The accused wishes to investigate aspects relating to the diagnoses and treatment of that complainant’s mental health condition.

3. By a notice of motion filed 10 March 2022, the accused applied for leave under s 298 of the Criminal Procedure Act 1986 (NSW) (the ‘CP Act’) to issue subpoenas to various entities to produce documents regarding that complainant, broadly to do with her mental health conditions and treatment of them. On 4 April 2022 the accused’s application was heard before Pickering DCJ. Leave was granted by the Court to issue subpoenas to:

1. NSW Police;

2. Queensland Police;

3. Dr Gregory McKeough (a treating psychiatrist); and

4. The Cairns and Hinterland Hospital and Health Service (CHHHS).

4. Mr Hulme, who appeared for the complainant on the present application, did not object to the accused’s access to documents produced by the Queensland and NSW Police. Apparently, Dr McKeough did not produce any material.

5. What is now in issue before me is whether the accused should be granted access to inspect the documents produced by the CHHHS. They were produced in a packet 12.

6. The accused acknowledges that the complainant is the principal protected confider, as the alleged victim and that she has standing to be heard on the application (ss 295, 299A). Mr Hulme contends that access should be denied as the documents are privileged, in accordance with the provisions of Division 2 of Part 5 of the CP Act. I will henceforth refer to the complainant as the PPC. Mr Crown appeared at the hearing of the application, but only as a watching brief: the Crown was neutral on the issue for determination.

The subpoena

7. Categories 1-10 of the subpoena to the CHHHS were relevantly in the following terms:

1. All documents in relation to (the PPC) evidencing any diagnosis of a mental illness or mental condition that she was suffering at the time of her consultations with you.

2. All documents recording any thoughts or beliefs of (the PPC) about her undertaking scientific work.

3. All documents recording any thoughts or beliefs of (the PPC) in relation to a band of elephants around her arm.

4. All documents recording any thoughts or beliefs of (the PPC) in relation to saving the planet.

5. All documents recording any thoughts or beliefs of (the PPC) that you have, at any time, concluded were not based in reality, were delusions and/or were hallucinations.

6. All documents recording any communications between you and any other person about any disordered thoughts of (the PPC) or disordered thinking by (the PPC).

7. All documents recording the nature of medical, psychological and/or psychiatric treatment of (the PPC).

8. All documents recording the use of any of the following therapies in the treatment of (the PPC):

1. Hypnosis.

2. Hypnotic induction.

3. Eye Movement Desensitization and Reprocessing (EMDR) therapy.

4. Age regression therapy.

5. Therapy in relation to the reprocessing of memory.

6. Trauma therapy involving the reprocessing of traumatic memories, in particular, the reprocessing of traumatic memories relating to sexual activity.

9. All documents recording any communications between you and any representative of NSW Police about (the PPC).

10. All documents recording any communications between you and any representative of Queensland Police about (the PPC).

8. As the accused notes, on the face of the schedule to the subpoena, categories 1-8 generally concern clinical records; whereas categories 9-10 concern communications (with NSW and Queensland police).

9. In practical terms, the CHHHS responded to the subpoena by merely supplying its clinical file. No attempt was made by the CHHHS to systematically place documents into any of the categories in the subpoena.

10. Mr Hulme constructed a folder in which the file was inserted. I have marked the folder MFI 7. Mr Hulme arranged the contents of the file in a folder under 4 separate dividers. The fourth and last divider featured a bundle of documents which, coincidentally, related to a person of the same name as the PPC, but with a different date of birth. They had nothing to do with the PPC and he submitted no access should be granted to them. My perusal of documents under divider 4 bears out Mr Hulme’s assertion in that regard. No access is permitted in relation to the documents placed under the fourth divider.

11. Of the remaining documents, falling within dividers 1-3, the bundle of documents comprised 64 documents, tallying approximately 290 pages.

12. At the Court’s request, Mr Hulme subsequently supplied the Court with an email indicating where no claim of sexual assault communications privilege was pressed (MFI 5). There is no reason why access to those documents should be withheld from the accused.

13. At the time of argument, a trial was imminent. That position might subsequently have changed. At any rate, Counsel for the accused indicated that two days of pre-trial argument had been scheduled to commence early this week. This provides some context for the brevity of reasoning in respect to my decisions about individual documents, although I preface my determinations about individual documents with a range of observations generally applicable to all of those determinations.

Evidence

PPC’s evidence

14. Before me, the PPC relied upon an ‘open’ affidavit she affirmed on 21 March 2022 and a ‘confidential’ affidavit she affirmed 31 March 2022. Mr Hulme read an affidavit he affirmed on 21 March 2022. The last affidavit annexed witness statements of the PPC dated 24 April 2015 and Ms Jenny Dunn, dated 21 July 2020. Amongst other things, Ms Dunn had deposed to an episode of consensual sex with the accused in 1983 and also having evidence of a report she heard, apparently in about 1986, of the PPC having forced sex with the accused, although she did not discuss this with the PPC herself.

The accused’s evidence

15. The accused relied upon the affidavits of Claudette Cecilia Chua sworn 9 March 2022, with Exhibit CCC-2 (Exhibit A on the application) and 27 April 2022, with Exhibit CCC-4 (Exhibit B). Ms Chua is the accused’s solicitor.

16. The accused also relied upon other documents that were annexed to Counsel for the accused’s written submissions, being: emails from the PPC, dated 2 and 23 February 2022 (Exhibits C & D), a report of a psychiatrist, Dr Olav Nielssen, dated 27 March 2022 (Exhibit E), in which Dr Nielssen reviewed several documents, including witness statements of the PPC dated 24 April 2015 and 7 March 2022, and some email communications from her dated 2 and 23 February 2022), and the PPC’s statement dated ‘# Not 7-3-2022” (Exhibit F).

Parties’ arguments

The accused’s arguments

17. The accused argued that the categories in the schedule to the subpoena were closely directed, or limited. They did not require production of the entirety of the PPC’s clinical file, but were directed to diagnoses, opinions, specific thoughts or beliefs of the PPC, and treatment of her, including the therapies she had received. In the event, the recipient of the subpoena did not engage in any careful parsing of documents with reference to the categories. It simply produced the clinical file.

18. At any rate, by reference to a COPS document which the accused had obtained during the proceeding, the accused argued it was already apparent that for many years prior to her making complaint to police in 2015, the PPC had suffered schizophrenia and that she was receiving medication to treat that condition that year from Dr McKeough; it was also apparent that she had dealings with a social worker, ‘Catherine’, who, it was apprehended, was affiliated with the CHHHS; that Dr McKeough and Catherine had both opined that she was ‘not fit to stand trial’; that on 12 May 2015, police contacted the PPC and a written record of that contact expressed, among other things, concerns about her current mental stability and the validity of the witness statement given by her to police 2-3 weeks before.

19. The accused relied upon an email from the PPC dated 21 February 2022 which it fairly argued did not make any sense and raised questions about her current mental health condition and reliability.

20. Relevantly, Dr Nielssen opined that it was possible that at the dates she prepared her (first) witness statement in 2015, it was possible that her perception of events had changed over time in response to symptoms of schizophrenia and, that when she made her 2022 witness statement, it was possible that the statement incorporated delusional beliefs arising from her mental illness. About the email correspondence from February 2022, Dr Nielssen considered that the correspondence showed signs of disorganized and delusional thinking consistent with an active form of schizophrenia that had been either under-treated or was unresponsive to treatment.

21. From this evidence, the accused submitted that the evidence indicated an available argument that the complainant’s first witness statement, when it was first made in 2015, was either not credible or was unreliable at the time it was made because of her mental health condition and further, that at about the point where a trial was scheduled to commence, her mental health condition continues to afflict her and will impinge upon her capacity to give reliable evidence at trial.

22. The accused submits, further, that the documents sought by the subpoena are not otherwise available to him.

23. Thirdly, the accused submits that the public interest in preserving the confidentiality of protected confidences is substantially outweighed by the public interest from the grant of leave. (In this regard, on the authority of KS v Veitch (No.2) (2012) 300 ALR 181; [2012] NSWCCA 266 (“Veitch No.2”) at [35]) it is assumed that relevant documents will be admitted into evidence). Such confidentiality as exists had already been eroded, as the COPS material had already disclosed that the PPC suffers from a very serious mental health condition, that the PPC has received treatment for it and that others held concerns about her ability to withstand a trial and, moreover, opinions in that regard had been disclosed to police. The application is not put on the basis of any discriminatory belief or bias against the PPC.

The PPC’s arguments

24. The PPC submits that it is not to the point whether the PPC has, or had, a serious mental health condition or conditions. The issue is whether her mental health condition is ‘substantially probative’ in relation to the evidence that she will give at trial (emphasis added) and that it would only be substantially probative if there was a demonstrable nexus between her mental health condition and the evidence she would give at trial.

25. In confidential submissions to the Court (the accused having been supplied only a redacted version), the PPC provided a summary of a review of the documents which the CHHHS had produced.

26. Turning to the criteria in s 299D(1)(a), and with reference to assertions in the COPS entry, what the OIC may have insinuated as delusional statements by the PPC were actually factual representations. Opinions held by the OIC about the prospects of a charge involving conduct against the PPC being established had little bearing on whether the material had substantial probative value. Where, within notes from 2015, there was an opinion about the PPC being “not fit to stand trial” this was to be construed as her resilience to stress, and was not a question about her reliability.

27. As to categories indicating specific treatments she received relating to her memory (category 8), no such records were produced. As to categories concerning hallucinations or delusions (category 5), there were no documents indicating that her perception of events had changed over time and it was a matter of mere conjecture to say that she had incorporated delusional beliefs into her witness statement.

28. Generally, it was submitted that the majority of documents had very limited probative value in relation to the evidence she would give at trial. To the extent that documents concerned physical treatment she received, they would be irrelevant (and in some cases were particularly sensitive to her).

29. The PPC identified (but only confidentially) material which she regarded as having the most bearing upon her mental state at the time she made her 2015 statement.

30. As to s 299D(1)(a), the PPC argued with reference to authority that the evidence must be ‘important’ or ‘consequential’, and would have to be admissible. This was significantly stronger than the test for whether documents produced in response to a subpoena issued under the general law. She anticipates that the accused would only be trying to use the material to indicate an absence of unreliability in a generic sense, rather than by reference to any specific evidence. To reiterate, the PPC submitted that there had to be demonstrated a nexus between the evidence to be given and the mental health condition. The PPC referred to NAR v PPC1 [2013] NSWCCA 25, where an example was given of a complainant’s description of events changing after she had endured a mental crisis and an issue arose whether that mental crisis, if it arose at all, affected the veracity of an earlier description of the events. It was said that Dr Nielssen’s evidence did not establish this requirement. At its highest, it showed that it was possible that the PPC’s perception of events had changed over time. If, as Dr Nielssen opined, there was any disabling form of communication, that might only show a difficulty in communication that the PPC had, from time to time. It did not itself relate to her credibility.

31. The PPC submitted that when determining whether there is substantial probative value in a document, the Court must take into account other available evidence. The PPC conceded that the Court could determine that material was substantially probative if it ‘mitigates an inaccurate assessment of the PPC’s mental state or credibility’, or where ‘partial access to material has resulted in a skewed or misleading assessment of the PPC’s credibility’.

32. As to s 299D(1)(b), the PPC generally concedes that other documents or evidence to which the confidences relate are not available. However, the PPC submits that the test refers to specific confidences and applies only after the Court has identified the material that has substantial probative value.

33. As to s 299D(1)(c), the PPC repeated its submissions directed on the ‘substantially probative value’ requirement in s 299D(1)(a).

The accused’s submissions in reply

34. As to s 299D(1)(a), the accused submitted that if access to the documents was granted, the accused, and the jury, would understand more of the context in which the COPS records were made.

35. The accused argued that the PPC’s submission that the accused needed to establish a nexus between her mental health condition and the evidence she would give at trial was misconceived. In a practical sense, substantial probative value could be established by documents that would cast doubt on the veracity or reliability of the complainant at all times, including when she made witness statements, and not only about the complainant’s reliability at trial.

36. It was incorrect to say that there was no material indicating whether the PPC’s perception of events had changed over time.

37. The accused argued that the ‘open’ evidence the PPC relied upon does not answer the accused’s submissions regarding her historical and arguably present mental health conditions and their impact on her ability to make reliable complaint or give reliable evidence at trial. The PPC has not demonstrated, definitively, that she is currently well enough to work and study; nor, at any rate, would that fact be conclusive against the proposition, established by other evidence, that she apparently suffers from delusions.

38. Further, by reason of s 298(3) of the CP Act, the PPC obtains a further level of statutory protection as the accused will require further leave to adduce evidence of protected confidences in the trial.

Statutory provisions

39. The PPC bears the onus of establishing the privilege^[2] .

    2. ER v Khan [2015] NSWCCA 230 at [84]

40. It is common ground that determination of the accused’s application for access is governed by s 299D(1) of the CP Act ^[3] , through which the Court must be satisfied of the three matters set out in (a)-(c) (incl). In Veitch No.2, Basten JA observed:

“31 Under the general requirements in relation to a subpoena or a notice to produce, it is not necessary that the moving party demonstrate that the material sought will be admissible in evidence; the accepted test of a "legitimate forensic purpose" is undoubtedly broader than that. An accused may well seek access to documents in order to formulate lines of cross-examination, either by suggesting that the applicant has made inconsistent statements to a counsellor in relation to the circumstances of the offence, or by using material in the medical records to suggest that the evidence of the applicant may be unreliable. It may be possible to formulate a line of cross-examination without seeking to admit into evidence the document or the information contained in the document.

32 It follows that the first limb, requiring that the court be satisfied that the document or evidence "have substantial probative value", before allowing the accused access to it, will constitute a significant reduction in the material which might be made available to the accused under the general law with respect to access to material on subpoena or through a notice to produce (or, indeed, a call for a document in the course of proceedings). This reduction is the result of the inclusion in s 299D(1) of paragraph (a).

33 The second limb, in paragraph (b), requiring that the information or matters to which the protected confidence relates not be otherwise available, is intended to prevent access to counselling communications where relevant material is available from another source, in this case the applicant's statements to police.

34 The third requirement imposes an additional and significant constraint. It requires that two competing public interests be considered, with access being conditional upon the public interest in protection of confidences being "substantially outweighed" by the interest in admitting the material into evidence. Significantly, the former public interest has two limbs: the first addresses the public interest in maintaining protected confidences generally, while the second relates to possible harm to the particular confider. The purpose of protecting such confidences generally is to encourage victims of sexual assault to seek professional assistance to deal with the resultant trauma. That public purpose will be undermined if confidentiality is too readily held to be overridden by other public interests, in circumstances where the court may be satisfied that the particular confider will not suffer significant harm. On the other hand, an assessment that the information has substantial probative value, in the usual case no doubt by casting doubt on the veracity or reliability of the complainant, will militate in favour of disclosure where it could give rise to a doubt as to the guilt of the accused.

35 For the purpose of making the balance required by paragraph (c), it appears to be assumed that the information contained in the documents will in fact be admitted into evidence in one form or another. How that assumption would operate in particular circumstances is not a matter which can be helpfully addressed in the abstract.

36 The respondent characterised the effect of the Division as precluding access to such communications. However, that is not a fair reflection of the operation of s 299D. It should be accepted that even where the information contained in the document has substantial probative value (in the sense discussed above) and the risk of significant harm to the individual in the event of disclosure is not high, factors which favour maintaining confidentially generally may be significant. Although the balancing exercise is weighted against disclosure, that course is nevertheless permitted where the court is satisfied that the public interest in such an outcome substantially outweighs the countervailing considerations.

37 There is a further factor which may arise in this context. The concept of "substantive probative value", accepting that it extends to questions or evidence relevant to the credibility of the complainant, must nevertheless be concerned with admissible material. However, use of some material which is potentially of greatest probative value, namely material relating to previous sexual experience, lack of sexual experience or sexual activity, will be precluded by s 293”.

3. PPC v Stylianou [2018] NSWCCA 300 (“Stylianou”) at [27]

41. The non-exhaustive range of discretionary considerations in s 299D(2) may be taken into account when deciding the third of those matters in s 299D((1)(c).

42. In PPC v Williams (2013) 224 A Crim R 555 at [76], the Court of Criminal Appeal confirmed that the weighting exercise in s 299D(1)(c) applies at the stage where the Court is considering whether access to inspect documents should be granted. See also Stylianou, supra at [22], [47].

43. To the extent that the accused wishes to adduce evidence at trial which would disclose a protected confidence, he will separately require the Court’s leave under s 298(3) to do so.

Consideration

General approach to the task

44. In argument, reflecting the PPC’s concession about s 299D(1)(b), the parties agreed that the proper approach for the Court was:

1. to ascertain, with reference to each and every document, whether a document recorded a ‘protected confidence’, under s 296. If not, there will be no impediment to access (‘Step 1’);

2. if a protected confidence was recorded, to assess whether the document, by itself or having regard to other documents or evidence produced or to be produced, has ‘substantial probative value’, under s 299D(1)(a) (‘Step 2’)

3. if the document had substantive probative value, to then engage in the weighting exercise required by s 299D(1)(c), and in particular determine whether the public interests in preservation of the confidence and protection of the PPC from harm are outweighed by the public interest in admitting in evidence information (‘Step 3’).

45. In deciding whether each of those steps have been satisfied, I take into account the statutory provisions and the authorities I have cited which have elucidated their meaning and scope.

46. Certain general observations can be made in explanation of my approach and the reasons about all of the individual documents I am about to state.

47. First, I agree with the solicitor for the PPC that because of the breadth of the definition in s 296 of the CP Act (especially s 296(1)-(4)), it may be expected, almost presumptively, that most of the documents produced by the recipient record protected confidences. This has the lowest threshold for satisfaction of the three steps. However, as noted elsewhere, in multiple instances, the solicitor for the PPC accepts that within the documents, there are those which are not privileged. For the balance, I have assessed whether step 1 is satisfied. If it is, I say no more about the document in question, before proceeding to step 2 and (if applicable) step 3.

48. Secondly, in some cases, documents could not conceivably be relevant on their face, let alone be substantially probative in value. There are cases where a protected conference may have no probative value. When this occurs, the conclusion I reach below is curtly expressed.

49. Thirdly, in other cases, I form a view that there is some probative value in a document but have assessed that it is not substantially probative in value. Where this occurs, in my reasons below, I acknowledge some probative force. As a general guide, it is not sufficient to say that a document has substantial probative value simply because it reveals any mental disorder in the PPC at a particular time. What makes the document substantially probative is the capacity it has to rationally demonstrate a connection between a diagnosis, the symptoms of it and the extent to which the nature or severity of the symptoms are likely to bear upon such matters as the PPC’s general credibility (including her honesty) or reliability (including her capacity to rationally recall) about the alleged sexual assaults on her.

50. Some examples suffice to illuminate the metes and bounds of the test in the present context. First, simply because a confidence discloses what reasonable bystanders may think represents an unhealthy obsessiveness in the PPC about social, political or economic issues affecting the world, or nation, is unlikely to make the document substantially probative. To take a second example, a document tending to show imprudent conduct, though it might be regarded by other mental health patients (or treatment providers) as unreasonable, would not be substantially probative to proof of a lack of credibility or reliability. Thirdly, a document that asserts or refers to the existence of hallucinations of delusions in the PPC may not necessarily be indicative of a lack of credibility or reliability in the capacity to recall details of an alleged sexual assault. Alfred Deakin was a prominent Australian politician in the late nineteenth and early twentieth centuries, who, in common with a number of people in society at that time, was a spiritualist who engaged in seances. History has not regarded him as automatically diminished in credibility or reliability in performance of his functions by reason of that spiritual predilection, even if others of less spiritual bent in our own times might view sceptically, or as ‘delusional’, beliefs he expressed about the influence upon him of the voices of dead people ^[4] . This is not, by any stretch, to equate schizophrenia with spiritualism: it is merely to illustrate that a person’s belief system is not singularly indicative of a person’s capacity to remember important events in the person’s life. What might be more probative are indications in a document of disordered thought manifested in conduct, an example of which was the PPC’s email of 21 February 2022 (Exhibit A, p 23).

    4. J Brett, The Enigmatic Mr Deakin (2017)

51. Under step 2, it is not the province of a judge, by denying access, to foreclose reasonable arguments that may be available to the accused, which is why I emphasised, as a guide, the significance of the capacity of a document to affect an issue at trial or, more specifically, the credibility and reliability of the PPC’s evidence. I agree with the representative for the PPC’s submission that, for present purposes, what is recorded in the document be ‘important’, or ‘consequential’, but it need not be more than that. In this regard, I recognise the point raised by Basten JA in Veitch No.2 (at [31]) regarding the reduction in documents that an accused may expect to obtain when accessing documents compared to what he or she might have been expected to obtain in the general law. But s 299D(1)(a) still imports a predictive and evaluative assessment and at the point of decisions of access, it remains the case that a trial judge will ultimately have to decide whether the document is in fact admitted, on the premise that access has been granted. A trial judge is likely to be in a more advantageous position to determine the ultimate question of admission than a judge tasked, as I am, with the responsibility of deciding access questions, since the trial judge is more likely to be able to assess the probative value of a document “having regard to other documents or evidence produced or adduced or to be produced or adduced” by the production-seeking or tendering party. In this case, I have only been given a snapshot of the documents (already) produced. This should not represent any slackening in the rigour with which a judge must assess a document under step 2. It is merely a realistic statement of the limitation that a judge making assessment of step 2 at the access stage labours under.

52. The PPC’s argument that what is material is her credibility and reliability as a witness at trial is true so far as it goes. But the question of her mental capacity (to use that generic term) at the time she made her witness statements, the first of which was made in March 2015, cannot be cordoned off from that assessment. Thus, a document evidencing disorder or, say, delusions or hallucinations at a time proximate to when she made her witness statements is potentially substantially probative. As the accused’s Counsel correctly noted, the circumstance that subsequent witness statements have been given by the PPC, seeking to correct or at least alter what was said in the first statement, compounds the significance of her mental state when she made the first of her statements. This is not a case, such as occurred in NAR v PPC1, where a question arose whether a mental crisis in the complainant intervening between the alleged offending and complaint and the trial, and if it did, whether that intervention affected the complainant’s credibility or reliability. In that particular case, it was not apparent that the complainant’s mental condition could have affected her in a disabling way at the time when she complained. On the Crown case statement here, there is nothing to indicate a reliance upon complaint evidence up to when PPC made her first witness statement in March 2015 which would establish that there was no possibility that she could have been affected by a disabling mental condition when she made that first witness statement. The evidence indicated that she had sustained schizophrenia many years before that statement. Her mental condition when she gave that statement, and those which have followed, is very material.

53. Fourthly, to some extent, the PPC’s submissions evince a concern that a grant of access of any particular document might lead to the spectre of documents being used by the accused to attack her credit or reliability without a full or proper reference to other documents. However, by reason of s 300 of the CP Act, it is open to the PPC, who has now herself had access to all the documents produced by the CHHHS, to waive privilege; which might lead to the situation of any privilege in documents which she perceived as being favourable in the sense of restoring credit or reliability, being waived, so as to place the earlier ‘damaging’ documents in their proper context. It is not, at any rate, a reason for denying access if the conditions in s 299D are otherwise satisfied.

54. Fifthly, even if, to some degree, confidentiality has been eroded already, relevant to the weighting exercise is whether it has been eroded by the PPC’s own conduct. Where confidentiality has eroded for reasons other than of the PPC’s making, that circumstance does not negate the cogency of the matters referred to in s 299D(2) (especially (a)-(c) and (f)), and what Basten JA said at [34]-[36] in Veitch (No.2).

55. Sixthly, in all cases where I have found that step 2 is satisfied, I must, of course, engage in the weighting exercise identified in s 299D(1)(c), being step 3. One aspect of that is the two public interests favouring preservation of confidences. In that regard, I take into account, in particular, the need to encourage alleged victims of sexual offences to seek counselling without fear of disclosure and their expectation that the confidence in what is confided will be maintained. I acknowledge and adopt, with respect, the admonition of Basten JA in Veitch (No.2) at [77] regarding the unintended dilution of the statutory privilege if confidentiality is too lightly overridden. Here, I accept that the PPC believed and, indeed trusted, those in whom she confided that her confidences would be respected. It is not the case, however, that she has any current on-going relationship with the persons associated with the recipient of this subpoena which would be compromised by a finding that access is justified. At least she did not assert that she had any on-going association.

56. Another public interest is the prevention of harm to the PPC. When engaging in step 3, in each and every case, I acknowledge, from the confidential affidavit of the PPC, that a certain kind of harm may arise from the grant of access (I am unable to state the matter any more specifically).

57. Seventhly, despite the PPC’s belief to the contrary, I do not accept that disclosure of any protected confidence is sought on the basis of any discriminatory belief or bias against her even if the PPC may, subjectively, feel discriminated against by any grant of disclosure.

58. Eighthly, there is force in the accused’s submission that even if access is granted, it would still be necessary for the accused to seek the Court’s leave to have the document adduced in evidence. I do not infer that this result arises from legislative inadvertence. Plainly, the barriers in s 299D(1) are formidable (at the levels of both the initial decision to grant leave to issue the subpoena, and then to grant access to documents produced) but once surmounted, a Judge tasked with making determinations about documents which should be available for access would likely be circumspect about drawing fine distinctions in any predictive assessment it makes as to whether documents are likely to be admitted at trial. That is primarily the responsibility of the trial judge. The position may be different when consideration is given to some manifestly applicable basis for exclusion, such as s 293 of the CP Act. In this case, other than the invocation of s 293 in a couple of instances, the PPC’s solicitor did not argue for refusal of access on the basis of an exclusionary provision under the CP Act or the Evidence Act 1995 (NSW).

59. After argument was closed, as indicated earlier in these reasons, Mr Hulme produced a supplementary email (MFI 5) in which he identified a sub-class within the 64 documents (all marked with a ‘Tab’) those in respect to which no claim was made that sexual assault communications privilege subsisted. They are tabs 1, 2, 8, 9, 10, 12, 13, 18, 25, 37, 46 and 47 (save for part of the document, at pages 39-40). In respect to these documents, access should be granted, without the Court needing to resort to analysis of steps 2 and 3.

60. I will now address the balance of the documents which are in contest. It was common ground that I should inspect all of the documents in the clinical file (per s 299B(3) of the CP Act).

61. I have been assisted in my assessments by a confidential index, including summary descriptions of each of the documents, prepared by Mr Hulme (MFI 6). I am conscious of the difficulties, when giving reasons for determinations, relating to the risk of disclosure of contents of material, which were adverted to by Basten JA in Veitch (No.2) at [69]-[70]. Where necessary, I have tried to confine disclosure by reference to generic description of subject matter.

Tab 3

62. Step 2 is not satisfied. Access is denied.

Tab 4

63. Step 2 is not satisfied. Access is denied.

Tab 5

64. Step 2 is not satisfied. Access is denied.

Tab 6

65. Step 2 is not satisfied. Access is denied.

Tab 7

66. Step 2 is not satisfied. Access is denied

Tab 11

67. Step 2 is not satisfied. Access is denied.

Tab 14

68. Step 2 is not satisfied. Access is denied.

Tab 15

69. Although this document has some value, in relation to a diagnosis, having regard to the reasons for referral and the time, it does not satisfy step 2. Access is denied.

Tab 16

70. Although this document has some value, in relation to a diagnosis, having regard to the reasons for referral and the time, it does not satisfy step 2. Access is denied.

Tab 17

71. I find that there is some probative value in this document, however, given the proximity between the date of its creation and when the PPC made her first witness statement, I am not satisfied that it has substantial probative value. Access is denied.

Tab 19

72. Although there is some probative value about this document, given the context in which the confidence occurred, including the reason for it and the date, it is not substantial. Access is denied.

Tab 20

73. I reach the same conclusion for this document as I do regarding Tab 19, which communication occurred on or about the same date. Access is denied.

Tabs 21 & 22

74. Step 2 is not satisfied. Access is denied.

Tabs 23 & 24

75. Although reference is made to a mental disorder, having regard to the respective dates of the document, occurring well after the alleged offending and well before the first witness statement was made, the documents do not have substantial probative value. Access is denied

Tab 26

76. Step 2 is not satisfied. Access is denied.

Tab 27

77. Step 2 is not satisfied. Access is denied.

Tab 28

78. The notes that appear in this document, which refer to mental health disorders post-date by a significant period of time when the alleged offending occurred, and precede, by many years when the first witness statement was made. Accordingly, step 2 is not satisfied. Access is denied.

Tab 29

79. Although having some probative value, through the attribution of certain mental health conditions from about mid-1990s, there is no rational connection between those and the alleged offending and accordingly no substantial probative value in this document, so step 2 not satisfied. The document is also inadmissible under s 293(3) of the CP Act. Access is denied.

Tab 30

80. Although there are notes of some probative value, in the sense of a discussion of potential disorders, having regard to the date it was created, the document does not have substantial probative value, viewed in context of grief experienced by the PPC. Access is denied.

Tab 31

81. Step 2 is not satisfied. Access is denied.

Tabs 32, 33, 34, 35 & 36

82. Although there is probative value in each of these documents with reference to the timing for when treatment was received and the reason for it, it does not have substantial probative value. Access is denied.

Tab 38

83. Step 2 is not satisfied. Access is denied.

Tab 39

84. Step 2 is not satisfied. Access is denied.

Tab 40

85. Step 2 is not satisfied. Access is denied.

Tab 41

86. For this document, there is some probative value, but it remains remote in time from when the first witness statement was made and accordingly has no substantial probative value. Access is denied.

Tab 42

87. Step 2 is not satisfied. Access is denied.

Tab 43

88. For the same reason as my reason for determination of the document at Tab 41, step 2 is not satisfied. Access is denied.

Tab 44

89. Although this document has some probative value, in the sense of identifying certain symptoms about a year before PPC made her first witness statement, that identification is historical in the context in which the document was created. Accordingly, it has no substantial probative value. Access is denied.

Tab 45

90. This document provides context by explaining the provenance of the document at Tab 47. Aside from that purpose, it contains some opinions at a time reasonably proximate to when the PPC made her first witness statement.

91. In relation to this document, and also the documents at Tabs 47 and 49-50, to which I will return to below, a general submission is made that the mental condition or symptoms indicated at or about the date the document was created was not representative of PPC’s condition at the time she complained to police. As I indicated in my general observations, whether or not the submission is correct, it provides no basis against the conclusion that it has substantial probative value. I find that step 2 is satisfied.

92. As to the weighting exercise in step 3, I refer to and repeat the general observations earlier expressed about s 299D(1)(c), recognising both public interests against access. However, on balance, the possibility that the accused may reasonably make use of the document to sow doubt as to the reliability of the PPC’s evidence at the time she made her first witness statement means that those public interests are, in this instance, outweighed by the public interest in the prospective admission of evidence in aid of the accused’ forensic interest in sowing doubt about his guilt. Access to this document should be granted.

Tab 47

93. This document is an annexure to Tab 46, a document in respect to which no claim of privilege was maintained. The document features expert opinion from a psychiatrist.

94. For the same reasons as I indicated in relation to Tab 45, relating to both steps 2 & 3, access to this document should be granted.

Tab 48

95. Step 2 is not satisfied. Access is denied.

Tab 49

96. For the same reasons as I indicated in relation to Tab 45, relating to both steps 2 & 3, access to this document should be granted.

Tab 50

97. Access should be granted to the progress note dated 18 December 2014 (pp 58-60) and contact summary dated 7 January 2015 (pp 62-63), for the same reasons as that indicated in relation to the document at Tab 45 (and Tab 49).

Tab 51

98. Step 2 not satisfied. Access is denied.

Tab 52

99. Access to this document should be granted. As to step 2, it not only indicates certain symptoms associated with a disorder, but treatment supplied in relation to those symptoms at a time reasonably proximate to when the PPC made her first witness statement.

100. As to step 3, I repeat the general observations concerning the weighting exercise in s 299D(1)(c) referred to above, but also add that such harm as arises to the PPC from access might be regarded as being mitigated having regard to conclusions reached in the document, when compared with the content of the conclusions reached in Tabs 45, 47 & 49-50 referred to earlier.

Tab 53

101. Step 2 is not satisfied. Access is denied.

Tab 54

102. Step 2 is not satisfied. Access is denied.

Tab 55

103. Step 2 is not satisfied. Access is denied.

Tab 56

104. Step 2 is not satisfied. Access is denied.

Tab 57

105. Access should be granted. It provides a summary of care reasonably proximate to when the PPC made her first witness statement. It contains reference to diagnoses, recent treatment (to that point) and lingering symptoms.

106. As to step 3, I repeat the observations I made about that step as concerned Tab 52.

Tab 58

107. Step 2 is not satisfied. Access is denied.

Tab 59

108. Access should be granted. This document apparently post-dates, but not by much, the PPC’s making of her first witness statement, but it refers to her condition at about the time of that statement and in this way conceivably assists to illuminate her mental condition when she made it. It is effectively an update of Tab 57 and the reasons why access was granted to that document (as to both steps 2 and 3) also apply to this document.

Tab 60

109. Step 2 is not satisfied. Access is denied.

Tab 61

110. Step 2 is not satisfied. Access is denied.

Tab 62

111. To some extent the document duplicates other documents to which access is granted, but does not substantially add to their probative value. Access is denied.

Tab 63

112. This document is essentially an update of the document at Tab 59, but at a much later time. Though it has some probative value, it is not substantially probative. Access is denied.

Tab 64

113. Step 2 is not satisfied. Access is denied.

Orders

114. Access is granted to the accused to the documents in Packet 12 produced on subpoena by the Cairns and Hinterland Hospital and Health Service, identified as Tabs 1, 2, 8, 9, 10, 12, 13, 18, 25, 37, 45, 46, 47, 49, 50 (partly, as indicated) 52, 57 & 59, as flagged, in the folder constructed by the PPC’s legal representative (MFI 7). For convenience, I have arranged to extract from the working copy of MFI 7 copies of these documents, and that bundle is now available for access. Access is otherwise denied.

Postscript

115. After hearing argument on the orders and by consent of both the parties, the access orders were varied so that access:

1. extended to copying the documents to which access was granted; and

2. was to be limited to the parties’ legal representatives and any expert witness relied upon by the accused or the Crown, subject to further application to the trial judge.

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Endnotes

Decision last updated: 05 May 2022