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:

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).

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.

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.

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.

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

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).

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.

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.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Kerry (a pseudonym) (No 2)

Details

AGLC: R v Kerry (a pseudonym) (No 2) [2022] ACTSC 111
Case: [2022] ACTSC 111
Decision Date

CaseChat Overview and Summary

In the matter of R v Kerry (a pseudonym) (No 2), the Supreme Court of the Australian Capital Territory was tasked with determining whether the Crown could disclose certain protected confidences in a criminal proceeding. The respondent, Zeph Gerard Kerry, was facing charges of sexual assault involving a complainant who had since passed away. The Crown sought leave to disclose medical records from St John of God Burwood Hospital, which were protected under the Evidence (Miscellaneous Provisions) Act 1991 (ACT). The primary legal issue before the court was whether the threshold test for disclosing protected confidence evidence had been met, and if so, whether the documents in question should be disclosed to the parties.

The court began by noting that the threshold test for disclosure of protected confidence evidence required a legitimate forensic purpose. The Crown argued that the disclosure was necessary for the respondent to make a full defence, which was crucial under consideration (a) of section 79H of the Act. While the respondent contended that the Crown was engaging in a fishing expedition, the court found that the potential for a successful application under section 65 of the Evidence Act 2011 (ACT) was sufficient to meet the threshold test. The court also considered the potential probative value of the evidence and whether the disclosure was necessary for an accused person to make a full defence. Given that the complainant had indicated no objection to the disclosure, the court concluded that the threshold test was satisfied.

Upon conducting a preliminary examination of the documents, the court found that several of them contained protected confidences that were relevant to the case. These documents had substantial probative value and could significantly affect the outcome of the proceeding. While the court recognised that disclosure could potentially dissuade other victims from seeking treatment, the necessity for the respondent to make a full defence outweighed this concern. The court decided that it was appropriate to grant leave for the inspection of the documents to the extent that they had been copied and placed in an envelope marked “confidential for parties only”.

The final orders of the court granted leave to the Crown and the respondent to inspect the documents produced under subpoena by St John of God Burwood Hospital, limited to those that had been copied and placed in the confidential envelope. This decision ensured that the respondent could make a full defence while also considering the public interest and the potential impact on future victims of sexual offences.

Orders