R v Kerry (a pseudonym) (No 2)

[2022] ACTSC 111

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Kerry (a pseudonym) (No 2)

Citation:

[2022] ACTSC 111

Hearing Date:

23 May 2022

DecisionDate:

24 May 2022

Before:

Elkaim J

Decision:

Leave to the Crown and the Accused to inspect documents produced under subpoena by the St John of God Hospital Burwood to the extent that they have been copied and placed in an envelope marked “confidential for parties only”

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – application to disclose protected confidence – where Crown seeks leave to disclose documents

Legislation Cited:

Evidence Act 2011 (ACT) s 65, 79G, 79H

Evidence (Miscellaneous Provisions) Act 1991 (ACT) div 4.4.2

Parties:

The Queen ( Crown)

Zeph Gerard Kerry (a pseudonym) ( Accused)

Representation:

Counsel

K Marson ( Crown)

T Jackson ( Accused)

Solicitors

ACT Director of Public Prosecutions ( Crown)

Legal Aid ACT ( Accused)

File Number:

SCC 39 of 2022

Elkaim J:

1. On 21 March 2022 the Crown filed an application in proceeding seeking leave to disclose protected confidence evidence pursuant to Division 4.4.2 (but presumably meaning 4.4.3) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the Act).

1. The protected information relates to one of two complainants who assert that the respondent sexually assaulted them. There are two counts in the indictment. The relevant complainant is the subject of the first count. This complainant has passed away.

1. The asserted offending is said to have occurred between December 1971 and December 1975. The complainant was the sister (perhaps through an adoption process) of the respondent.

1. Following an initial hearing of the matter I made an order, on 19 April 2022, that the Crown had leave to issue a subpoena to the St John of God Burwood Hospital for notes of the treatment of the complainant by a Dr Daniel Murray.

1. The hospital produced an envelope of notes, prompting the Crown to relist the matter in order to seek leave to disclose the documents.

1. Section 79F of the Act says an application for leave faces a threshold test of whether or not there is a legitimate forensic purpose for the disclosure. Perhaps unusually, this application is by the Crown, but not surprising having regard to the complainant now being deceased. The documents could potentially assist the Crown in establishing the case against the respondent, in particular through s 65 of the Evidence Act 2011 (ACT).

1. The question of whether the evidence would be permissible, at trial, through the application of s 65 is not one that needs to be decided in this application.

1. The respondent submitted that the Crown’s true intention was to engage in a “fishing expedition” designed to see if there is any material upon which a s 65 application might be based.

1. It is enough, in my view, for me to accept that the threshold test has been passed because of the potential of a successful s 65 application. No doubt if the Crown makes an application under s 65, it will be decided by the trial judge, or perhaps in a pre-trial procedure, on its merits.

1. The matters raised by the respondent, such as any unfairness to the accused, will no doubt be the subject of submissions in the s 65 application.

1. Once the threshold test has been passed the Court, under s 79G, is obliged to “conduct a preliminary examination of the protected confidence evidence to decide whether leave should be given”.

1. After the preliminary investigation has been conducted, s 79H says that the court may give leave but only if satisfied, but not exclusively, of a number of factors set out in the section. Subsection (3) lists the matters the court must have regard to:

79HGiving of leave to disclose protected confidence

…

(3)In making a decision under subsection (1), the court must have regard to—

(a) for a criminal proceeding—the extent to which disclosure of the protected confidence is necessary for an accused person to make a full defence; and

(b) the public interest in ensuring that victims of sexual offences receive effective counselling or other treatment; and

(c) the extent to which disclosure of protected confidences may dissuade victims of sexual offences from seeking counselling or other treatment or diminish the value of counselling or other treatment; and

(d) whether the evidence will have a substantial probative value to a fact in issue and whether other evidence of similar or greater probative value is available about the matters to which the evidence relates; and

(e) the likelihood that disclosure of the protected confidence will affect the outcome of the case; and

(f)whether disclosure of the protected confidence is sought on the basis of a discriminatory belief or bias; and

(g) whether the person to or by whom the protected confidence was made objects to the disclosure of the protected confidence; and

(h) the nature and extent of the reasonable expectation of confidentiality for the protected confidence and the potential prejudice to the privacy of anyone, including to the extent to which any interest in confidentiality or privacy has been lessened by the passage of time or the happening of any event since the protected confidence was made.

1. Consideration (a) is for the benefit of the respondent. The respondent should know all of the information available to the Crown in order to conduct his defence.

1. Considerations (b), (c) and (f) are not relevant to this case.

1. It is notable here that the complainant, before she died, apparently indicated that she had no objection to the disclosure of the information. This is relevant to considerations (g) and (h).

1. Considerations (d) and (e) are the most relevant. Subject to the detail of the disclosures, they could have a marked influence on the outcome of the case and be of substantial probative value to whether or not the facts in issue took place.

1. Against the above background I have conducted an examination of the documents produced under subpoena. A good deal of them are handwritten and sometimes difficult to understand. Nevertheless it is apparent that a number of the documents are protected confidences which fall within the scope of considerations (d) and (e).

1. I have separated, and had copied, those documents in respect of which leave to inspect should be granted to the parties. It is not appropriate that I, in these reasons, describe the documents.

1. Accordingly I give leave for the inspection of the documents produced under subpoena by the St John of God Hospital Burwood to the extent that they have been copied and placed in an envelope marked “confidential for parties only”.

I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: