R v Efandis (Ruling no 1)
[2008] VSC 380
•15 July 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1594 of 2006
| THE QUEEN |
| v |
| VASILIKI EFANDIS |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 July 2008 | |
DATE OF RULING: | 15 July 2008 | |
CASE MAY BE CITED AS: | R v Efandis (Ruling No. 1) | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 380 | |
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CRIMINAL LAW – Evidence – Public Interest Immunity – Subpoena duces tecum seeking medical and psychiatric records of prisoner – Prisoner to give evidence of jail confession by accused.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J Champion SC | Stuart Ward, Acting Solicitor for Public Prosecutions |
| For the Accused | Mr C Thomson | Balmer & Associates Pty |
| For the ThomasEmblingHospital | Mr T Dalton, Corporate Counsel for Forensicare | |
| For the Justice Health Unit, Department of Justice | Ms D Coombs, Principal Solicitor for Corrections Victoria |
HIS HONOUR:
The accused, Vasiliki Efandis, has been charged by presentment with intentionally and unlawfully damaging by fire a house at Bellfield belonging to herself and George Marcetta, thereby causing the death of George Marcetta, and also with the murder of George Marcetta on 9 September 2004. She has pleaded not guilty to both charges.
The trial is due to commence before me shortly after the resolution of some outstanding preliminary issues.
At the trial the Crown proposes to call as a witness a person to whom I shall refer as “Ms JP”. Ms JP was an inmate of Dame Phyllis Frost Centre in December 2005 when the accused was also in custody at that centre. Ms JP was released in February 2007 and on 19 April 2007 she made a statement to the police. In that statement she has alleged that the accused has made relevant admissions to her in relation to the two charges.
As a consequence, those acting for the accused have issued and served two subpoenas dated 4 July 2008, directed to the Justice Health Unit and to the Thomas Embling Hospital. Both subpoenas seek production of the same documents, namely all medical and psychiatric records for Ms PJ from Thomas Embling Hospital and Dame Phyllis Frost in particular during the period 17 October 2006 to 19 February 2007.
Mr Dalton appeared before me in answer to the subpoena addressed to Forensicare, and Ms Coombs appeared before me in response to the subpoena directed to Justice Health Unit. Each of them claimed that the documents, the subject of the subpoena are privileged on the grounds of public interest immunity. Neither respondent has filed an affidavit in support of that claim. Instead, they each relied on two decisions of Cummins J in this Court, to which I shall shortly refer, in support of the proposition that documents of the kind sought by the subpoenas are prima facie the subject of public interest immunity. Neither Mr Dalton, nor Ms Coombs made any submission to me as to how I should resolve the relevant balancing exercise between the rights of the accused and the public interest in the confidentiality of the documents sought by the subpoena, should I accept the threshold proposition that the documents are prima facie the subject of public interest immunity.
In response Mr Thomson, who appears for the accused, submitted that the documents which are the subject of the subpoena are not documents of a class which may be the subject of public interest immunity. In support of that proposition, he referred me to the decision of the Court of Appeal in Royal Women’s Hospital and Medical Practitioners’ Board of Victoria[1]. In any event, Mr Thomson submitted that the balance strongly favours the production of the documents sought by the subpoena in order to assist the accused in her defence of the two charges.
[1](2005) 15 VR 22, [2006] VSCA 85.
In my view, in the current state of the authorities, the question is unresolved whether the documents contained in the files which are the subject of the subpoenas are documents of a class, or are documents which contain information of a class, which are prima facie the subject of public interest immunity. Certainly there are two decision of Cummins J of this Court at first instance which support the proposition that such documents may be the subject of public interest immunity. In R v Evans[2], the accused at his trial sought the prison records of a witness who was to be called for the Crown. Cummins J ruled that the file sought by that subpoena was prima facie the subject of public interest immunity, but his Honour held that in that case the balance of justice favoured the disclosure of those documents to the accused.
[2]Unreported, SCV, 16 April 1998.
In deciding that the documents were prima facie the subject of public interest immunity, Cummins J considered as pivotal the circumstance that the medical material contained in the files had been derived by compulsive process from a prisoner who was in custody and had been derived for the purposes not just of the health of the prisoner, but for the good order of the prison.
That reasoning was adopted and applied by His Honour in his subsequent decision of Clifford v Victorian Institute of Forensic Mental Health & Anor[3]. In that case, the police had sought from the Chief Magistrate a search warrant to obtain the Mont Park Hospital file of a suspect who, it was believed, had made relevant admissions to the Mont Park authorities. The Chief Magistrate refused to issue the search warrant and that refusal was upheld on appeal by Cummins J. His Honour held that the documents were prima facie covered by public interest immunity and that the balancing exercise did not favour the disclosure of those documents to the police.
[3][1999] VSC 359.
On their face, the two decisions to which I have just referred lend support to the proposition that medical files, of the type sought by the accused by the two subpoenas served in this case, may be the subject of public interest immunity. However, it is open to debate whether those two decisions still represent the law in Victoria after the decision of the Court of Appeal in Royal Women’s Hospital v Medical Board of Victoria, to which I have just referred. In that case, the Board sought access to medical records of a woman on whom a late term abortion had been performed at the Hospital. The Hospital resisted the production of those documents on the basis of public interest immunity. The Court of Appeal unanimously held that the documents were not the subject of public interest immunity. However, their Honours expressed different reasons for doing so. Warren CJ[4] followed the decision of Spigelman CJ of New South Wales in R v Young[5], in which His Honour had stated that in order that a document be the subject of public interest immunity it must relate to matters which affect the executive arm of government. Maxwell P considered that it was not the class of document which was relevant but rather the character of the information contained in the documents. His Honour held that in order that such information be the subject of public interest immunity, it must relate to the decision making by instruments of government at the highest levels.[6] Charles JA[7] adopted a more liberal view of what constitutes governmental function, but expressed doubts as to whether the medical records in that case, nevertheless, fell within the privilege.
[4][2006] VSCA 85, [33] to [35].
[5][1999] 46 NSWLR 681.
[6][2006] VSCA 85, [49] to [53].
[7]Ibid, [122] and following.
Notwithstanding the differing approaches of the three members of the Court of Appeal, it can be discerned that the Court unanimously considered that ordinarily, in order that documents be the subject of privilege, they must relate to government decision-making at either an executive level or at a higher level. In light of that decision, there is, clearly, an issue as to whether the two decisions of Cummins J in Evans and Clifford remain good law.
In the present case, it is desirable that I rule on the issues raised in response to the subpoenas as soon as possible. The documents are being sought on behalf of the defence not only for use in the trial but also, importantly, for use in a Basha enquiry which is shortly to be held. It is desirable that that Basha enquiry proceed at the earliest time in order to enable important issues to be explored on behalf of the defence with Ms JP. Given the haste with which I need to decide this matter, it is desirable that I refrain from deciding whether the decisions of Cummins J remain good law, unless it is strictly necessary for me to do so. In my view, it is not necessary for me to decide that matter and I therefore refrain from expressing a view on the issue. I find it unnecessary to decide whether the documents sought by the subpoenas may, prima facie, be the subject of public interest immunity, because I have come to the view that even if they are, prima facie, the subject of such an immunity then, with one small exception, the interests of justice dictate that the documents contained in the files be disclosed to the accused and her advisors.
The question whether a document is privileged from production on the basis of public interest immunity involves the court balancing two competing aspects of the public interest. On the one hand, the court must consider the extent, if any, to which harm would be done by the production of the documents. On the other hand, and in competition with that interest, the court must weigh the extent, if any, to which the administration of justice would be frustrated or impaired if the documents were withheld from a party in litigation. By performing that balancing exercise, the court must determine, for the purposes of the case, which of the two competing aspects of public interest is to predominate. See in particular Alistair v The Queen[8], Sankey v Whitlam[9].
[8](1984) 154 CLR 404 at 412 per Gibbs CJ.
[9](1978) 142 CLR 1 at 38-39, Gibbs ACJ.
In this case, I have examined the documents contained in the files which have been produced pursuant to the subpoenas. Having done so, I have come to the firm conclusion that, even if the documents contained in those files were prima facie the subject of a public interest immunity, any adverse effect caused by their disclosure would be substantially outweighed by the unfair prejudice to the accused if I upheld the privilege asserted on behalf of the two respondents to the subpoenas. The accused has been charged with two very serious criminal offences. As I stated, in the statement made by her to the police, Ms JP alleges that the accused made material admissions to her relating to her guilt of those two offences. Self evidently, the evidence of Ms JP has the potential to be particular damaging to the accused in this case. Without revealing the contents of the files, it is clear that the documents contained in the files contain information which may be properly regarded by the jury as having a material effect on the credibility and reliability of Ms JP as a witness. In particular, they contain matters relating not only to the criminal history of Ms JP, but also to her longstanding psychiatric history, both of which matters might be, quite properly, made the subject of cross-examination on behalf of the accused. Clearly, those matters are potentially relevant to the assessment by the jury of the weight and worth of the evidence to be adduced from Ms JP.
In reaching my conclusions, I am mindful of issues considered by Cummins J in Evans’ case, and in particular the circumstance that the revelation of these documents to the accused and her advisers may occasion some embarrassment to Ms JP. Nonetheless, any such embarrassment is, in my view, heavily outweighed by the competing prejudice which would necessarily be caused to the accused if the documents were not disclosed to her for the purposes of this case for use in cross-examination of Ms JP.
For those reasons, and subject to one minor exclusion, I am of the view that even if the documents were prima facie the subject of public interest immunity, that immunity would not prevail in the face of the competing and predominant interest of the accused in fairly defending the charges against her. Accordingly, I reject the claim for privilege asserted on behalf of both of the two respondents to the subpoenas.
I have referred to one minor exception to that ruling and it relates to the two files that have been produced by Forensicare. There is one minor matter referred to in some of the documents which, in my view, would be unfair to Ms JP to reveal but which could not, on any view, in my opinion, be used in the trial of the accused. It is a private matter which, in my view, ought not to be revealed on the production of the documents. I have flagged with yellow stickers the four points at which that matter has been raised and to assist, I have photocopied the pages and on the photocopy I have put a red line through the parts which should be deleted, and initialled them. I direct that the documents, in which those four pages are contained, be removed from the files and be substituted with a photocopy with the short passages to which I have referred, deleted. Otherwise, I overrule the claim for public interest immunity, and I direct that all the files be made available to the accused and to her advisor for use in the trial.