R v Kapociunas (No 3)
[2015] ACTSC 421
•11 December 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Kapociunas (No 3) |
Citation: | [2015] ACTSC 421 |
Hearing Date(s): | 10, 11 December 2015 |
DecisionDate: | 11 December 2015 |
Before: | Murrell CJ |
Decision: | Evidence of the file note admitted. |
Catchwords: | EVIDENCE – Protected confidence – admission – relevance – discretionary exclusion |
Legislation Cited: | Criminal Code Act 1995 (Cth) s 272.8(1) Evidence Act 2011 (ACT) ss 55, 66, 102, 135, 136 Evidence (Miscellaneous Provisions) Amendment Bill 2003 |
Parties: | The Queen (Applicant) Vytas Bronius Kapociunas (Respondent) |
Representation: | Counsel Mr N Robinson QC (Applicant) Mr B Collaery (Respondent) |
| Solicitors Commonwealth Director of Public Prosecutions (Applicant) Collaery Lawyers (Respondent) | |
File Number(s): | SCC 1 of 2015 |
MURRELL CJ:
The application
The accused sought leave to disclose a “protected confidence” (a file note prepared by Dr Peter Murphy, a psychologist at the Department of Foreign Affairs and Trade (DFAT), on about 29 August 2014), pursuant to s 59 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (Miscellaneous Provisions Act).
The Court granted the accused leave for short service of a subpoena on Dr Murphy because, if the file note was admitted into evidence, Dr Murphy would be required to give evidence.
The prosecution opposed the application. The prosecution contended that, even if the file note was a protected confidence, it should not be admitted into evidence because it was not relevant to any fact in issue in the proceedings. Alternatively, it should be excluded for discretionary reasons.
Issues
Is the file note a “protected confidence” within the meaning of s 55 of the Miscellaneous Provisions Act (and as such should not be disclosed unless leave is granted)?
If so, should leave be granted pursuant to s 59 of the Miscellaneous Provisions Act to disclose the file note by admitting it into evidence? The answer to this question requires the Court to consider whether there is a legitimate forensic purpose for seeking leave.
In any event, is the file note relevant? Could it rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding?
If the file note is relevant, should the Court exclude it for discretionary reasons?
Background
In the trial, the prosecution alleges that, on 28 August 2014, in Madrid, Spain, the accused engaged in sexual activity with the complainant, an eight-year-old girl, contrary to s 272.8(1) of the Criminal Code Act 1995 (Cth) (Criminal Code).
The complainant’s mother has given evidence that, on the evening of 28 August 2014, the complainant told her, inter alia, that the accused had engaged in sexual activity with the complainant on three occasions earlier that day. The complainant told her that the sexual activity included kissing and rubbing the complainant’s genital area (the disclosure).
The complainant’s mother said that, after hearing the disclosure, she sent an email to the DFAT Staff and Family Support Office (Exhibit E), referring to the complainant’s disclosure of “inappropriate touching” and seeking advice about the best manner in which to deal with the situation in the interests of the complainant. About 15 minutes later, she received a telephone call from Dr Murphy, a DFAT psychologist.
In evidence, the complainant’s mother said that she could not recall what she had said to Dr Murphy, but she believed that she repeated what the complainant had told her.
Dr Murphy’s file note in relation to the telephone consultation (which was subsequently marked Exhibit 12) refers to the complainant disclosing two incidents of sexual interaction to her mother (not three), and refers to each incident involving kissing on the mouth and touching and rubbing the genital area (not kissing of the genital area).
Dr Murphy counselled the complainant’s mother about the manner in which she should deal with the disclosure. He advised her to make a detailed record of the disclosure conversation.
On the morning of 29 August 2014, the complainant’s mother compiled a detailed note about the disclosure (Exhibit 3). She also telephoned Gary Williams at the DFAT Conduct and Ethics Unit. Later that day, she emailed her detailed note to Mr Williams.
The contents of Exhibit 3 accord with the complainant’s account of sexual activity.
Neither the complainant nor the complainant’s mother was questioned about whether the complainant’s mother had influenced the complainant to embellish the content of her original disclosure.
Submissions
The terms of the disclosure were significant, both in relation to the complainant’s credit and because they provided some evidence of the facts asserted in the disclosure.
Belatedly, the accused submitted that the file note was not a “protected confidence” within the meaning of the Miscellaneous Provisions Act. He submitted that it should be admitted because it was relevant. The file note was said to be relevant (and had an important forensic purpose) because it tended to undermine the credit of the complainant’s mother in relation to the terms of the complainant’s disclosure; it suggested that the complainant disclosed only two episodes of sexual activity and that the complainant made no disclosure about kissing on the genital area. It suggested that, after speaking to Dr Murphy and before compiling her detailed note (Exhibit 3), the complainant’s mother had “embellished” the terms of the complainant’s disclosure.
The prosecution submitted that Dr Murphy’s file note was a “protected confidence” and that the Court should not grant leave enabling the file note to be admitted into evidence. Further, the prosecution submitted that the file note was of little, if any, relevance. To the extent that it was relevant, it should be excluded in the exercise of the Court’s discretion because its probative value was low and there was a high risk that the jury would become confused by the directions that would need to be given in relation to the limited use that could be made of it.
Protected confidence
Division 4.5 of the Miscellaneous Provisions Act is headed “Protection of counselling communications”. It includes ss 54–67.
Section 58(2) of the Miscellaneous Provisions Act provides:
A protected confidence must not be disclosed in, or for the purposes of, the proceeding unless the court dealing with the proceeding gives leave for the disclosure.
Section 55 of the Miscellaneous Provisions Act is entitled “Meaning of protected confidence – div 4.5”. Relevantly, it provides:
(1)For this division, a protected confidence is a counselling communication made by, to or about a person against whom a sexual offence was, or is alleged to have been, committed (the counselled person).
...
(3)For this section, a counselling communication is a communication made in circumstances that give rise to a reasonable expectation of confidentiality or a duty of confidentiality—
...
(Emphasis in original)
(d)to the counselled person by a third party mentioned in subsection (4) for the purpose, or in the course, of the counselling relationship between the counselled person and the counsellor...
(Emphasis added)
(4)... it does not matter that the communication was made in the presence of a third party, if the third party was present to assist or encourage communication between the counselled person and counsellor or otherwise assist the counselling process.
Section 55(1) provides that, for a communication to be a “protected confidence”, it must not only have been “made by, to or about a person against whom a sexual offence was, or is alleged to have been, committed...”. The communication must also have been made “in the course, of the counselling relationship between ... [a person against whom a sexual offence was, or is alleged to have been, committed] and the counsellor”.
It is the counselling relationship between the alleged victim and the victim’s counsellor that div 4.5 is concerned to protect. Section 55(3)(d) does not protect confidential communications between relatives and associates of sexual assault victims and their counsellors, even if the subject matter of the counselling is the commission or alleged commission of the sexual assault.
This interpretation is consistent with the Explanatory Statement that was provided in connection with the Evidence (Miscellaneous Provisions) Amendment Bill 2003, which introduced div 4.5. At pages 3-4, the Explanatory Statement says:
Protection of counselling communications
New division 4.5 introduces immunity for counselling notes made for, to or on behalf of a sexual offence victim. It provides a framework for an ACT court to apply when a party seeks a sexual offence victim’s counselling notes be disclosed for a proceeding. This division does not cover an accused person’s counselling notes.
The scope of the immunity is set out in sections 54 and 55 ... A protected confidence is a counselling communication made by, to, or about a sexual offence victim ...
(Emphasis in original)
Dr Murphy had no counselling relationship with the complainant (the sexual offence victim). Rather, his role was to provide confidential counselling to the complainant’s mother about how she should deal with the disclosure so as to best protect the complainant.
Dr Murphy’s note is not a “protected confidence” and no question arises in relation to the grant of leave under s 59 of the Miscellaneous Provisions Act.
Relevance
The complaint evidence given by the complainant’s mother was admissible under s 66 of the Evidence Act 2011 (ACT) (Evidence Act) as an exception to the hearsay rule. Its relevance was twofold. First, it supported the credibility of the complainant; she made an almost immediate complaint about the three alleged offences. Second, it provided some evidence of the critical facts asserted in the complaint.
First, for present purposes (but with some hesitation) I accept the prosecution argument that, if the evidence of the complainant’s mother was relevant only because it supported the credibility of the complainant herself, then the file note would be inadmissible because it would breach s 102 of the Evidence Act, which outlines the credibility rule.
Second, the file note is relevant because it goes to the reliability of the mother’s evidence about what facts were asserted.
Section 55 of the Evidence Act explains the concept of relevance. It provides:
(1)The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2)In particular, evidence is not taken to be irrelevant only because it relates only to–
(a)the credibility of a witness; or
(b)the admissibility of other evidence; or
(c)a failure to adduce evidence.
The prosecution alleges that the accused engaged in sexual activity; he rubbed and kissed the complainant in the genital area on three occasions. Put simply, the facts in issue in the proceeding are whether there were three interactions between the accused and the complainant (the accused says that there was only one interaction), and what occurred during any interaction (the accused says that he “blew a raspberry”).
In her evidence (and in Exhibit 3), the complainant’s mother said that the complainant complained almost immediately about three interactions. Further, the complainant’s mother said in her disclosure that the complainant indicated that the accused had both rubbed and kissed her in the genital area.
The file note is relevant evidence because it relates to the credibility of the complainant’s mother. In her evidence the complainant’s mother said that the disclosure concerned three interactions (not just two, as set out in the file note) and it concerned kissing in the genital area (not just touching and rubbing, as set out in the file note).
The accused accepted that the complainant disclosed something to her mother. It is the terms of the complaint that are in question. If, based on Dr Murphy’s file note, the jury considered that the mother’s evidence (and Exhibit 3) referring to three interactions was unreliable, then they could rely upon her complaint evidence as providing some evidence that two interactions in fact occurred, but not that three interactions occurred. Similarly, if Dr Murphy’s file note caused the jury to consider that the mother’s evidence (and Exhibit 3) referring to kissing in the genital area was unreliable, then they could rely upon the mother’s complaint evidence as providing some evidence that there was in fact touching and rubbing of the genital area, but not that there was kissing in the genital area.
To apply the words of s 55 of the Evidence Act, Dr Murphy’s file note could rationally (albeit indirectly) affect the assessment of the probability of the existence of facts in issue (the number and content of interactions between the accused and the complainant). If the jury could rely only on a complaint in more limited terms, then the complaint evidence provided some support for the facts of only two of the three charged interactions. Further, if the jury could rely only on a complaint in more limited terms, then the complaint evidence supported only some of the asserted interaction (it provides no evidence that there was kissing in the genital area).
Discretionary exclusion
The prosecution relied upon ss 135 and 136 of the Evidence Act arguing that, in the circumstances of the present case, admission of the file note evidence would mislead or confuse the jury because the jury direction concerning use of the file note evidence would necessarily be convoluted and confusing.
The prosecution pointed out that, taking into account the file note, three possible scenarios arose:
(a)The complainant’s evidence about what occurred coincided with her mother’s evidence about the terms of the disclosure (and Exhibit 3) because the complainant had accurately reported the interactions to her mother, who accurately recorded them on the following morning. Dr Murphy’s record was incomplete or inaccurate; he was concentrating less on the terms of the disclosure and more on what the complainant’s mother should do about it, and he may have made notes somewhat after the event.
(b)The complainant made the lesser disclosure that is recorded in Dr Murphy’s file note. Between 28 August 2014 when she spoke to Dr Murphy and the morning of 29 August 2014 when she compiled Exhibit 3, the complainant’s mother embellished the disclosure. The remarkable coincidence between the contents of Exhibit 3 and the complainant’s evidence is explained by the fact that the complainant’s mother must have coached the complainant to give the embellished version.
(c)It is just a remarkable coincidence. The interactions occurred as the complainant described in her evidence. The complainant disclosed a lesser version to her mother but, independently of the complainant, the mother embellished the lesser version and the embellished version happens to coincide with the version that the complainant independently says is true.
However, scenario (b) should be disregarded because neither the complainant nor her mother was questioned about this possible scenario. In those circumstances, it cannot now be put to the jury.
The prosecution submitted that, in the circumstances in which the accused has run his case (he has not relied on scenario (b)), the file note can have no substantial effect on the reliability of the mother’s evidence because scenario (c) can be dismissed as fanciful. On the other hand, it will be very difficult to direct the jury about the use to be made of the file note, and any direction is likely to be confusing.
The prosecution’s argument is superficially attractive. However, in my view it approaches the question from the wrong direction. It invites hypothesising about the manner in which the jury may reason.
The complaint evidence is important evidence. In relation to the facts in issue (the number of interactions and their content), the immediate complaint may provide powerful supporting evidence about what occurred.
I do not accept that any direction to the jury will necessarily be confusing.
I propose to approach the matter by explaining the two ways in which complaint evidence may be used.
In order to decide the extent to which the terms of the complaint provide some evidence of the facts asserted by the complainant in her evidence, it will be necessary for the jury to consider the terms of the complaint. As the accused has disputed the terms of the complaint, the jury will need to consider the chronological sequence of events (the disclosure, the mother’s first email, the telephone conversation with Dr Murphy and the compilation of Exhibit 3), and the circumstances in which these events occurred.
I understand that Dr Murphy will be available to give evidence about the circumstances in which the file note was prepared.
The evidence of the file note will be admitted.
| I certify that the preceding forty-seven [47] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: 16 February 2016 |
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