R v FRASER
[2013] SADC 31
•18 March 2013
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v FRASER
[2013] SADC 31
Reasons for Ruling of His Honour Judge Clayton
18 March 2013
PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - PRODUCTION AND INSPECTION - GROUNDS FOR RESISTING PRODUCTION - PUBLIC INTEREST IMMUNITY
HELD: Documents created prior to occurrence of the alleged offence are not protected by public interest immunity from disclosure by reason of Division 9 Part 7 of the Evidence Act 1929.
Evidence Act 1929 s 67D, s 67E, referred to.
Wilson v Magistrate's Court (SA) 154 A Crim R 537, considered.
R v FRASER
[2013] SADC 31
The accused is charged with the offences of indecent assault and rape. The victim of the alleged offences is a woman whom I will refer to as J. The offences are alleged to have been committed on 7 November 2009.
The solicitors for the accused have served subpoenas upon the Norwood health centre, Alice Springs Hospital and Repatriation General Hospital seeking production of their records relating to J. A question has arisen as to whether some of the documents which have been produced in answer to the subpoenas are protected from disclosure by reason of s 67E(1) of the Evidence Act 1929.
The relevant statutory provisions which are contained in Division 9 Part 7 of the Evidence Act are as follows:
67D - Interpretation
In this Division –
….
protected communication means a communication that is protected by public interest immunity under section 67E;
…
psychiatric or psychological therapy includes counselling;
therapeutic context a communication relating to a victim or alleged victim of a sexual offence is made in a therapeutic context if –
(a)the communication is made-
(i)to enable a counsellor or therapist to assess the nature and severity of the trauma suffered by the victim or alleged victim, or consequent psychiatric, psychological or emotional harm; or
(ii)for the purposes, or in the course, of psychiatric or psychological therapy provided to the victim or alleged victim; and
(b) the communication is made in circumstances that give rise to a duty of confidentiality or a reasonable expectation of confidentiality.
67E – Certain communications to be protected by public interest immunity
(1) A communication relating to a victim or alleged victim of a sexual offence is, if made in a therapeutic context, protected from disclosure in legal proceedings by public interest immunity.
…
67F – Evidence of protected communications
(1) Evidence of a protected communication-
…
(c)is not liable to discovery or any other form of pre-trial disclosure.
Other provisions that deal with applications for leave to adduce evidence of a protected communication and the holding of a preliminary examination. It is unnecessary to consider those provisions for present purposes.
The specific question which arises is whether the protection given to communications made in a "therapeutic context" extends to communications which predate the alleged offence. This question requires consideration of the definition of "therapeutic context" in subpara (a)(ii) of s 67D.
Subparagraph (a)(i) is confined to an assessment of the trauma suffered or consequent psychiatric, psychological or emotional harm. However subpara (ii) is in more general terms referring to communications for the purposes, or in the course of psychiatric or psychological therapy provided to the victim or alleged victim.
Before hearing argument I had a tentative view that subpara (ii) was not confined to communications made for the purpose of therapy in the context of psychiatric or psychological therapy provided to an alleged victim, but extended to any psychiatric or psychological therapy.
The question which arises was acknowledged, but left open, by Perry J in Wilson v Magistrates Court (SA) & Anor 154 A Crim R 537, 545 [51], and footnote 1. His Honour said:
On the other hand, the terms of the next subclause, subclause (a)(ii) in the definition of "therapeutic context" in s 67D, do not give rise to the same considerations. The communications to which that subclause relates, are described as communications made "for the purposes, or in the course, of psychiatric or psychological therapy provided to the victim or alleged victim". An awareness that the person seeking treatment or therapy is or is alleged to be the victim of a sexual offence, does not seem to me to be an essential requirement for that subclause to be application. 1 …
In the footnote his Honour said:
I do not pause to deal with the question, which does not arise in this case, whether subclause (a)(ii) would extend to communications predating the alleged offence.
Both defence counsel and the prosecutor argued that the more narrow interpretation should be given to subcl (a)(ii), that is that the protection is confined to communications in connection with the alleged offence.
Counsel referred to Hansard. Unfortunately while the purpose of the provision is described extensively it does not provide a great deal of assistance with respect to the specific question.
I have reached the conclusion that my tentative view is not correct and that the protection of Part 7 Division 9 of the Evidence Act is confined to communications made as a consequence of the alleged offence. I have reached that conclusion because of the reference to the person as "the victim or alleged victim of a sexual offence" in the preliminary words of the definition of "therapeutic context" and the reference to the victim or alleged victim in (a)(ii).
I find that communications are not "made in a therapeutic context" in the relevant sense until the person has assumed the status of a "victim or alleged victim". That is communications which predate the alleged offence do not relate to a victim or alleged victim.
If it was otherwise documents which recorded unprotected communications predating the alleged offence would gain protection which they did not otherwise have once the patient to whom they related assumed the status of a victim or alleged victim.
Accordingly I have reached the conclusion that communications which predate the alleged offending are not protected. Documents evidencing communications and treatment prior to the offending are liable to production in answer to these have been, subject to the common law rules. I have revisited the documents produced in answer to the subpoena and identify the documents which the parties may inspect.
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