R v Jeffrey - [2023] SADC 170

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Interlocutory Application)
R v JEFFREY
[2023] SADC 170
Reasons for Ruling of his Honour Judge Stretton (ex tempore)
24 November 2023
CRIMINAL LAW - PROCEDURE
This is a defence application for leave to issue subpoenas to the General Practitioners of the complainant in a rape case. There is nothing in the evidence or other materials to indicate that the complainant has any medical, psychological or psychiatric conditions relevant to her reliability or credibility, or that those medical practitioners would have any material relevant to the complainant's reliability or credibility, beyond the fact that they are the complainant's General Practitioners.
Applications to issue subpoenas on this basis are becoming regular. There is little appellate discussion of this scenario.
Whilst this is not such a case, the issuing of subpoenas to simply 'audit' disclosure is not to be encouraged.
Held:
1. The test articulated in AFP v XYZ (2015) SASC 115 that there is a reasonable possibility that documents sought under the subpoena will materially assist the defence is not met.
2. The application is refused.
3. If requested, given the increasing incidence of applications of this nature, the court is willing to reserve the question of whether this exercise of discretion is correct to the Court of Appeal.

R v JEFFREY
[2023] SADC 170

The accused in this matter, Mr Jeffrey has, through his counsel, made application pursuant to s 126(1)(b) of the Criminal Procedure Act 1921 for an order that a subpoena issue to the proper officers of the Edinburgh Health Centre and Norwood Family Practice returnable to this court.
That subpoena seeks the medical records of the complainant and does so on the grounds that the complainant's credibility and/or reliability will be central issues at trial, and that the subpoenas may unearth medical records that could reasonably be expected to be relevant to the reliability and/or credibility of the complainant.
The application limits the ambit of the subpoena to 12 months prior to the date of the alleged offending and are addressed to organisations at which it is known the complainant has attended for medical care.
Mr Jeffrey is charged with the offence of rape. The facts of the matter allege that the accused met the complainant at a pub in the early hours of the morning of 15 April 2022, and that later in the morning the complainant agreed to go home with the accused and sleep at his house.
The prosecution case is that prior to the complainant and the accused going to sleep in a bed at his house, whilst there was some intimacy in the form of kissing, she had made it clear on several occasions throughout the evening that actual sexual intercourse would not occur.
It is alleged that the complainant then woke up to find the accused having vaginal sexual intercourse with her from the rear, and immediately pushed him away and remonstrated with him. It is alleged that the accused reacted with surprise at that remonstration.
The complainant then left the premises and made a complaint shortly afterwards.
The accused was arrested and charged later that day.
The case relies entirely on the evidence of the complainant. At this time, it is unclear what the issues will be at trial, for example, whether or not intercourse did occur, or if it did occur whether or not there was consent.
Whichever permutation of that is ultimately the case, in light of the accused's plea of not guilty the credibility and the reliability of the complainant will be a central issue at trial.
I have reviewed the declarations by the complainant. They contain a straightforward narrative of the events to which the court has referred. There is no indication in those documents, nor in any other part of the prosecution brief that the complainant has any medical, psychological, or psychiatric issues that might throw light on her credibility or reliability.
The defence puts that from the defence perspective, i.e., that whilst either nothing happened or the whole thing was entirely consensual, for some unknown reason the complainant has decided to assert the converse, accordingly there must be or may well be, something going on from a medical or psychological perspective.
The scenario is one that often arises in this court.
On the prosecution case there is nothing to give any indication that there is subpoena material that would assist the defence. But viewed through the prism of the defence, on the assumption that the accused is not guilty, therefore the complainant is inexplicably wrong, and therefore might well be psychologically or psychiatrically misguided, or has some other medical attribute causing them to be wrong or lying. Accordingly, so the defence argument goes, there must be something there, or at least it is a possibility that there might be something there. Hence, so the argument goes, subpoenaed medical records could well assist the defence.
And therein lies the issue.
In some cases that come before the court there is something in the prosecution brief indicating there could be medical, psychological or psychiatric issues with the particular prosecution witness concerned. Or something in the prosecution brief might indicate that a subpoena might yield some other type of evidence relevant to the prosecution witness’ credibility.
For example, in the Mokbel[1] case; corruption investigations were on foot against the very police officers who were prosecution witnesses. Or a prosecution witness may have a criminal record including dishonesty offences, where their honesty and reliability is in issue in the trial. In the majority of those cases courts have concluded that it will be ‘on the cards’ that a subpoena may unearth material that would assist the defence.
[1] [2005] VSC 410.
Parker J set out the relevant principles governing the issuing of a subpoena in criminal matters at [40] of AFP v XYZ (2015) SASC 113:
(a)     it is necessary for the party at whose request the witness summons was issued to     identify expressly and precisely the legitimate forensic purpose for which access to     the documents is sought.
(b)     the identification of such a legitimate forensic purpose is to be considered by the    court without inspecting the documents sought to be produced.
(c)     the applicant for the witness summons must also satisfy the court that it is “on the cards”, or that there is a “reasonable possibility”, that the documents sought under       the subpoena “will materially assist the defence”.
(d)     a “fishing expedition” is not a legitimate forensic purpose and will not be permitted;
(e)     the relevance of a document to the proceeding alone will not substantiate an assertion      of legitimate forensic purpose. There is no legitimate forensic purpose if the party is       seeking to obtain documents to see whether they may be of relevance or of assistance in his or her defence.
(f)    a mere assertion of bad faith by an applicant or that something might be found     demonstrating bad faith is not enough – the criteria set out in (c) must be satisfied.
(g)     in criminal proceedings a “more liberal” view is taken by a court in respect of the application of the test. Special weight is to be given to the fact that the documents      may assist the defence of the accused.
(h)where a party fails to demonstrate a legitimate forensic purpose, the court should refuse access to the documents and set aside the witness summons.
As pithily encapsulated by Bell J in the case of Ragg v Ors [2008] VSC 1:
In summary, an accused person is entitled to seek production of such documents as are necessary for the conduct of a fair trial between the prosecution and the defence of the criminal charges that have been brought. When objection is taken the accused must identify expressly and with precision the forensic purpose for which access to the documents is sought. A legitimate purpose is demonstrated where the court considers having regard to its fundamental duty to ensure fair trial that there is a reasonable possibility the documents will materially assist the defence. That is a low threshold, but it is a threshold.
It is worth observing that there is an unfortunate trend in the course of some criminal litigation to issue as a matter of course what can only be described as ‘audit subpoenas’ shortly prior to trial, to any agency involved in the trial. Agencies can include the police, ICAC, or even the prosecution, to in effect guarantee that disclosure has been made. That is a very unfortunate trend which, in the absence of an actual indication of relevant material, verges on abusing the process of the court.
I can therefore understand why the DPP may now be taking a harder line with the issuing of subpoenas in cases where, from their perspective, there does not appear to be anything on the cards that a subpoena could achieve for the defence.
Applying the principles to the facts of this application, Mr Dadds has carefully identified ‘expressly and with precision’ the forensic purpose for which access to the material is sought. Were there to be material that he suspects there could be, it would be on the cards that material would assist the defence. However, there is simply no indication that there would be material of that nature.
The proposed recipients of the subpoenas appear to be GP practices not involved in psychological or psychiatric care, nor is any in-patient material sought. There is simply nothing to indicate that there would, could, or might be any material that might affect the credibility of the complainant beyond the speculative possibility that any member of the community might have such material if their GP was subpoenaed.
On that basis, in my view, the albeit low threshold of whether there is a ‘Reasonable possibility that material will materially assist the defence’ has not been met.
Accordingly, I decline to issue the subpoena.
Having said that, the facts of this case highlight an issue that is more and more regularly before this court, particularly in relation to the issue of medical records of complainants in sexual cases.
I note that none of the authorities has considered this situation at an appellate level; and as such no appellate assistance has been given to trial courts in approaching this increasingly common situation.
It is potentially an issue of general importance as to how the discretion whether or not to issue a subpoena should be exercised in this situation.
Accordingly, I indicate that were it sought by the defence or the prosecution, I would be prepared to refer to the Court of Appeal the question of whether the discretion I have exercised not to issue the subpoena was correct.
I note that given the period of time until the trial date, reservation of the question would not unduly delay the trial or sentencing of the accused, pursuant to sub-s (3) of s 153 of the Criminal Procedure Act 1921.