R v Kader
[2022] ACTSC 21
•1 February 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Kader |
Citation: | [2022] ACTSC 21 |
Hearing Date: | 1 February 2022 |
DecisionDate: | 1 February 2022 |
Before: | Norrish AJ |
Decision: | See [34] |
Catchwords: | CRIMINAL LAW – EVIDENCE – Leave to issue subpoenas – subpoenas may disclose protected confidences – leave for the disclosure of a protected confidence – legitimate forensic purpose |
Legislation Cited: | Crimes Act 1900 (ACT) ss 52, 60 Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 79A, 79D, 79E, 79F, 79G |
Cases Cited: | KS v Veitch (No 2) [2012] NSWCCA 266; 84 NSWLR 172 R v Chute (No 5) [2019] ACTSC 52; ALMD 4509 R v Nash [2021] ACTSC 169 R v Sirl [2019] ACTSC 225 |
Parties: | The Queen (Crown) Imran Kader (Offender) |
Representation: | Counsel K Lee ( Crown) M Jones SC (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Lancaster Law & Mediation (Offender) | |
File Numbers: | SCC 200 of 2021 SCC 201 of 2021 |
NORRISH AJ:
In this matter the accused, Imran Kader, makes two applications. The second application in time, and the second application that I had to deal with, concerns an application returnable today seeking the Court to make an order pursuant to s 79D(3)(a) and s 79E of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the Act), that leave be granted to the applicant to issue a subpoena addressed to [the psychologist] as annexed to the affidavit in support of the application sworn by the applicant’s solicitor on 28 January 2022. There are related orders sought, but I will come back to those matters.
The essence of the application is concerned with the issue of the grant of leave.
The matters that I am concerned with are governed by provisions of the Act which, at Division 4.4.3, sets out what has been described in other judgments as the relevant “framework for the protection of counselling communications in sexual offence proceedings.”
The context that invokes that legislation is this: the accused is to face his trial on 21 February 2022 in the ACT Supreme Court in relation to five counts in an indictment alleging various sexual assaults, including two counts of sexual intercourse without consent, two counts of committing an act of indecency without consent, and a count of inflicting actual bodily harm with intent to engage in sexual intercourse, pursuant to various provisions between s 52 and s 60 of the Crimes Act 1900 (ACT). The accused is pleading not guilty to those charges.
The counts relate to offences allegedly committed on or about 1 December 2019. I will come back to the short facts of the matter, but I note as part of the material annexed to various affidavits of the solicitor for the applicant, I have, amongst other documents, a Crown Case Statement which contains considerable detail and footnotes of the sources of the information relating to the specific allegations, as well as particulars relating to the elements of the charges brought against the accused, as well as transcripts of interviews with the complainant, a complaint witness, and other documents that have been made available to the accused by the Crown.
The overall factual context of the allegations against the accused is that the alleged sexual assaults occurred, as I understand from the Crown Case Statement, in the apartment of the accused after a Christmas party attended by the accused and the complainant. The complainant worked at the Canberra Hospital in a medical capacity. The accused was a vascular surgical registrar. The Crown case is that the accused took the complainant to his apartment by some form of hire car or cab and the sexual assaults giving rise to the charges in the indictment occurred within the apartment over a period of time.
It is pertinent to point out, as it will arise in the consideration of the issues in the trial relevant to this application for the grant of leave, that I have a transcript of an interview with a complaint witness. I need not include his name on the record, but he gave an extensive interview to police relating to his contact with the complainant, as I understand the matter, within a few hours of the alleged offences. The interview that the witness gave contains representations made by the complainant to the complaint witness available as evidence of hearsay representations. I refer to the answer to question 11 where he outlines the detail substantially of a telephone conversation he had with the complainant, he said, over approximately an hour from 2:00AM in the morning of 1 December 2019.
The Crown’s position in relation to the application, I should point out, is that it neither consents to or opposes the application; its position is neutral. Although, in fairness to the learned Crown prosecutor, whilst he did concede one aspect of the matters litigated on behalf of the applicant justifying a conclusion that there is a legitimate forensic purpose in the issue of the subpoena, he took issue with other matters that were raised. I will briefly deal with those matters as it is necessary for the purposes of determining the application.
Turning to the legislation – and I do not propose to recite all the legislation in the relevant part of the Act – I note by reference to s 79A that there can be no doubt, having regard to what is known to me, that the material sought to be subpoenaed is likely to contain protected confidences and would contain counselling communications between the complainant and the person being sought to produce the relevant documentation.
That person is a psychologist and the complainant, it would appear on the material available to the court, has been in consultation with that psychologist from approximately May of 2020 until at least, as I would understand it, the end of last year, possibly into this year.
In other words, the complainant has been in a continuing professional relationship with the psychologist. Section 79 of the Act provides a general immunity in relation to protected confidences. They must not be disclosed in, or for the purposes of, a proceeding unless the court dealing with the proceedings gives leave for the disclosure. The court, at this time, is not determining whether leave should be granted for disclosure or permission of a disclosure.
I am concerned with what is set out in s 79F of the Act, and that is what is described in the Act itself as a ‘threshold test’ for determining whether to grant leave, as leave is required, for the issue of a subpoena to produce material that may contain protected confidences in the character of counselling communications. Section 79E, of course, is directly relevant to the issues.
Section 79F states that the Court must refuse the leave sought pursuant to s 79E, under which section this application proceeds, if not satisfied that the applicant has established a legitimate forensic purpose for seeking the leave. Section 79F(2) provides:
To establish a legitimate forensic purpose, the applicant must –
(a) identify a legitimate forensic purpose for seeking the leave; and
(b) satisfy the court that there is an arguable case that the evidence in relation to which the leave is sought would materially assist the applicant’s case in the proceeding.
Section 79F(3) provides:
The court must decide whether or not to refuse the application under this section before it conducts a preliminary examination of the protected confidence evidence under section 79G.
This provision, s 79G, sets out a second stage for examination of the material to accommodate the legislative purpose upon production of material subject to the grant of leave which is being sought at the present time. In relation to those legislative provisions, I have been provided with a number of authorities, very helpfully, that involve determinations by Judges of this court in respect of applications of varying types concerned with the legislation.
To my mind, in some respects, the most helpful judgment for my purposes was the judgment of Justice Mossop in R v Chute (No 5) [2019] ACTSC 52; ALMD 4509 (R v Chute), particularly referring to paragraphs [3]-[11]. There are other judgments of assistance as well, such as Justice Loukas-Karlsson’s judgment in the decision of R v Nash [2021] ACTSC 169, particularly setting out the framework of the legislation and comments in respect of that.
The reason that the decision of Justice Mossop to which I have referred is of particular assistance is that, amongst other things, apart from being adopted in other authorities to which I have been referred, it focuses upon the issue of what can be identified as a legitimate forensic purpose and the basis upon which that identification can occur.
His Honour referred with approval to a decision relating to New South Wales legislation of similar effect, but not necessarily identical, of KS v Veitch(No 2) [2012] NSWCCA 266; 84 NSWLR 172, particularly the judgment of Basten JA at [31]-[32]. That judgment I am very familiar with, as I was the judge at the first instance who had to determine matters relevant to the identification of legitimate forensic purpose in the circumstances of that case. His Honour observed, at [32], reflecting upon the two limbs that contain within the legislation, that:
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 to have access to it, [a test that does not apply directly here] 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... This reduction is the result of the inclusion of [particular provisions in the legislation].
What Justice Mossop said in relation to those observations was as follows:
The same comment as was made by Basten J at [32] may be made about the operation of s 79F(2) [of the ACT Legislation]. It should be noted that the test [in that section] combines the concept of “an arguable case” with the expression “would materially assist”. Having regard to the fact that the applicant will necessarily not have access to the documents, it may be that in the absence of evidence about the content of the documents it is difficult to establish an arguable case that the evidence “would” materially assist the applicant’s case... Having regard to the late stage of the proceedings at which the present application was made, and the limited argument made by the parties, this case is not a suitable vehicle in which to examine the tension that exists within s 79F(2)(b).
I recognise that tension in this application. However, there are some pertinent matters to identify from the material available to the court and from the arguments skilfully put by both parties.
Firstly, the basis of the claim of legitimate forensic purpose advanced on behalf of the applicant skilfully by his counsel, is that in the circumstances as set out in the detail of the application access to the protected confidences sought to be produced to the court will potentially reveal whether some of the details in the complainant’s police interview, conducted just under seven months after the event, were reconstructed from flashbacks or nightmares or otherwise elicited or reconstructed in the course of appointments with a psychologist. The protected confidences may also reveal to what extent the complainant believed she may have indicated consent to the sexual activity, the subject of the charges. The protected confidences may also reveal consistency or inconsistency in her account. In oral argument it was put in those terms, but in a different order, as three bases for identifying the legitimate forensic purpose to which I referred.
I hope I have not misrepresented the Crown’s position, but the Crown did in his brief but helpful submissions, concede the argument in relation to the risk of reconstruction, or the fact of reconstruction, was one that could be seen to be arguable as a legitimate forensic purpose, having regard to the material that is available to the Crown and the defence. The issues of inconsistencies in account are matters, of course, that go to credibility and reliability of the complainant. The issue of consent, if in fact consent is an issue to be considered, is to be identified from certain representations made by the complainant.
I am not informed as to how the accused is proposing to conduct this case, but I understand the background of this matter has a potential for the issue of consent to be of some significance in the trial. To understand the matters advanced by the applicant one needs to understand some detail of the chronology by reference to the material that’s being provided to the court.
I referred to the detail of the evidence of complaint set out in the interview conducted with the friend of the complainant subsequent to the conversation he had over the telephone with her, apparently within a few hours of the alleged sexual assaults. In that regard the complainant, amongst other things, and I have cited a particular question and answer of the interview conducted with the complaint witness reflecting upon her representations, told the witness that her memory was ‘hazy’. The complainant also, by reference to the summary available in the written application, discussed with the complaint witness whether she may have ‘led the applicant on’ or had asked for the sexual activity to occur in the circumstances of their interrelation. I do not need to go into the detail of that material. It is on the transcript and it is cited in detail by learned counsel for the accused and applicant in this matter.
That aspect of the matter, however, is not the end of the issue. Because it would appear from the material available to the Court, that on 13 February 2020, in the course of consulting her general practitioner, the complainant gave an account to that general practitioner, which is available to the accused and the Crown, that she had been sexually assaulted by a male colleague at a work Christmas party. The doctor recorded, “does not fully recall events. Remembers being intoxicated and him leading her out of the bar, but memory is patchy otherwise”. The complainant also told the doctor of “flashbacks” of events, and some nightmares.
The further chronology relevant to the matters advanced on behalf of the applicant as a bases for identifying legitimate forensic purpose, include the fact that the complainant was referred to the psychologist in May 2020, and we understand from the material available that she commenced seeing the psychologist before she attended upon the police to be interviewed. The court has available in this application the transcript of the interview with the complainant conducted by the police, which will be the substance of her evidence-in-chief. By reference within the written application of the applicant, amongst the matters that she said in the course of that interview which will be her evidence-in-chief in the trial:
My time line of it [that is, the alleged assault] is sort of really messy and then there’s lots of bits missing. [That appears at question 237]
Subsequently, there is her answer at question 335, where she said, amongst other things:
I called one of my friends straightaway and told him everything that happened [this must be a reference to the complaint witness to whom I have referred] and so a couple of days later when I was sort of struggling with it, I asked him if, like, it had gone further because my memory got worse. Um, and he said, ‘Not that I had told him.’ So that’s how hazy my memory was.
One of the matters of significance in the context of the argument put in respect of what has been described as “reconstruction”, is that the complainant, in the course of the interview with the police, identified acts of the accused forming the basis for the prosecution and particular counts, that had not been disclosed by the complainant in the detail, for example, she gave the complaint witness shortly after the relevant events.
With regard to the issues that I am required to determine in the context of the legislation and previous cases, another decision perhaps worthwhile citing briefly, is the decision of R v Sirl [2019] ACTSC 225 (Sirl). In that decision, Crowe AJ, particularly at [16]-[17] discussed the issue of legitimate forensic purpose in the circumstances of the case he was considering. There the key issues identified for him to determine the existence of legitimate forensic purpose would seem to be confined to one matter. That is the reliability or credibility of the complainant’s account. It should be borne in mind, I hasten to say, of course, that essentially the Crown case is to be determined on the truthfulness and the reliability of the complainant, which is not an unusual situation in matters of this type.
Having regard to the matters his Honour had to consider in Sirl, his Honour adopted the analysis of Justice Mossop, as I respectfully do as well, to which I have referred earlier in the decision of R v Chute. I do so in the knowledge, of course, that it seems to me that it is beyond dispute for the purposes of this application that at least one of the matters properly identified as the legitimate forensic purpose has at least been exposed in the available material. Whether it develops to the point where, ultimately, it will be persuasive for a jury is not an issue that I need to determine, nor is it appropriate to consider at this particular time.
One of the issues in the matter of R v Chute is that leave was being sought in respect of the issue of subpoenae to, as I would understand it, six different organisations or persons concerned with protected confidences and counselling communication. Here, the application is very focused, having regard to the chronology I have outlined and the history of accounts given by the complainant that I have sought to summarise, which are set out in greater detail in the material contained within the application and also in the annexures to the solicitor’s affidavit.
Thus, in the circumstances of the matter, I have concluded that there are relevant legitimate forensic purposes identified and they have been identified in the matters I have summarised from the submissions of counsel for the applicant. I am satisfied that there is an arguable case that the evidence in relation to which the leave is sought. That is, the material that may be produced by subpoena, would materially assist the applicant’s case in the proceeding. However, of course, ultimately what use can be made of that material for the purposes of the trial will depend upon the circumstances of the second step to be undertaken by another judge for the reasons I have earlier outlined to the parties, pursuant to s 79G of the Act.
As Justice Mossop pointed out, the issue of a tension in reliably predicting what can be produced in circumstances where one has not seen the documentation is not a matter that I need to resolve for the purposes of this particular judgment.
Orders
In relation to the application pursuant to ss 79D and 79E of the Act, I make the following orders:
(a)Pursuant to section 79D(3)(a) and 79E of the Evidence (Miscellaneous Provisions) Act 1991 leave is granted to the applicant to issue a subpoena addressed to [the psychologist];
(b)The subpoena is to bear the endorsement on its front page: “This subpoena is issued for the purposes of S79G of the Evidence (Miscellaneous Provisions) Act 1991 (ACT)”. The schedule shall be in accordance with paragraph 1 of the Schedule of the draft subpoena annexed to the affidavit of the applicant’s solicitor, sworn on 28 January 2022;
(c)The subpoena be returnable on Thursday, 10 February 2022 at 9am. Any documents produced on the subpoena are to be produced in a sealed envelope. Parties are not to be given access to any documents produced unless leave is granted by a judge of this Court pursuant to s79H of the Evidence (Miscellaneous Provisions) Act 1991 (ACT);
(d)The parties to be granted liberty to approach the Registry to have the matter listed for the purposes of making submissions in respect of s79H of the Act.
| I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Norrish. Associate: Date: 14 February 2022 |
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