R v Kerry (a pseudonym)

[2022] ACTSC 80

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Kerry (a pseudonym)

Citation:

[2022] ACTSC 80

Hearing Date:

19 April 2022

DecisionDate:

19 April 2022

Before:

Elkaim J

Decision:

See [12]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – application to disclose protected confidence – whether Crown can subpoena documents and bring them before the Court prior to an application being made under section 65 of the Evidence Act 2011 (ACT)

Legislation Cited:

Evidence Act 2011 (ACT) s 65

Cases Cited:

Sio v The Queen [2016] HCA 32; 259 CLR 47

Parties:

The Queen ( Crown)

Zeph Kerry (a pseudonym) ( Accused)

Representation:

Counsel

K Marson ( Crown)

T Jackson ( Accused)

Solicitors

Director of Public Prosecutions ( Crown)

Legal Aid ACT ( Accused)

File Numbers:

SCC 39 of 2022

ELKAIM J:

1. On 21 March this year, the Crown made an application to disclose protected confidence evidence which was then, and may actually still be, held by the informant.  That material relates to the clinical notes of a Dr Murray who works or at the relevant time worked at the St John of God Hospital.

1. The accused is charged, although no indictment has yet been filed, with counts of acts of indecency committed upon two young female persons.

1. The accused opposed the application which prompted the Crown to amend the application to one of the issuing of a subpoena to the St John of God Hospital for the notes that I have mentioned above. This application is also opposed.

1. Mr Jackson, who appears on behalf of the accused, has said that, to use his words, 'the cart is being placed before the horse'. He says that because, in his submission, before these notes have any relevance, there needs to be an application under s 65 of the Evidence Act 2011 (ACT).

1. There needs to be such an application because the complainant to whom the notes refer has unfortunately passed away. Absent such an application first being made, says Mr Jackson, there is no relevance to the notes.

1. The Crown's response is that it does not really matter which is done first and the notes may well form part of complaint evidence even if they do not enter into evidence as evidence of the primary facts.

1. In my view, the starting point for this process should be to get the documents before the Court. 

1. There is, I have noticed, a frequent misapprehension about the effect of a subpoena.  A subpoena does no more than bring documents to the Registry.  It does not of itself grant access to those documents.  There may be arguments that would arise upon access being sought to the documents and in fact the accused would be entitled to inform the Registry that access should not be granted absent further orders.

1. I do not see there being any significance in whether the subpoena is issued first or the s 65 application is conducted first.

1. I do take Mr Jackson's point that under the High Court authority of Sio v The Queen [2016] HCA 32; 259 CLR 47, the s 65 application should be based upon what the complainant told the police. But that will be a matter for the s 65 application if and when it is made.

1. It is a different issue to whether or not the Crown can subpoena the documents and bring them to the court.

1. I make the following orders:

(a)I give leave to the Crown to issue a subpoena to St John of God Burwood Hospital for notes of treatment of [redacted] by Dr Daniel Murray.

(b)If the Crown wishes to change the wording of the subpoena, the Crown is to contact Defence and contact my chambers.

I certify that the preceding twelve [12] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: