R v Malone (No 3) - [2022] ACTSC 74

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Malone (No 3)
Citation:	[2022] ACTSC 74
Hearing Date:	13 April 2022
DecisionDate:	13 April 2022
Before:	Elkaim J
Decision:	See [61]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Subpoena – obligation on Victims of Crime Commissioner to produce documents – other avenues of objection to production
Legislation Cited:	Court Procedures Act 2004 (ACT) s 7 Court Procedures Rules 2006 (ACT) rr 6601, 6602, 6604 Evidence Act 2011 (ACT) ss 126A, 126B, 131A Legislation Act 2001 (ACT) s 8 Victims of Crime Act 1994 (ACT) ss 3AA, 29 Victims of Crime (Financial Assistance) Act 2016 (ACT) s 89
Cases Cited:	FCT v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 Hogan v Australian Crime Commission & Ors [2010] HCA 21; 240 CLR 651
Parties:	Victims of Crime Commissioner (Applicant) Kevin Malone ( Respondent) The Queen ( Crown)
Representation:	Counsel P Walker SC (Applicant) M Jones SC ( Respondent) S Jerome ( Crown)
Solicitors ACT Government Solicitor (Applicant) Legal Aid ( Respondent) ACT Director of Public Prosecutions ( Crown)
File Numbers:	SCC 211, 212 of 2021

ELKAIM J

Mr Malone, the respondent, is facing trial on an indictment which alleges that he had sexual intercourse with a female child under the age of 10 years.

Over two days last week I heard pre-trial recorded evidence from the complainant, her mother and another woman to whom a complaint about the alleged offending conduct was said to have been made.

In preparation for this hearing the respondent issued a subpoena, dated 29 March 2022, addressed to the Victims of Crime Commissioner (the Commissioner) for production of certain documents broadly relating to any claim for victims’ compensation made by the complainant.

When the subpoena was called upon, a representative of the Commissioner indicated that objection would be taken to production of the documents.

In response to the objection the respondent refined the width of the material sought under the subpoena, to the following:

Copies of records relating to a claim for financial assistance made to the victims services scheme by or on behalf of (the complainant), date of birth XXXX, relating to alleged offences committed upon her by Kevin Malone, date of birth XXXX, as follows:
any application for financial assistance made for or on behalf of (the complainant);
any document which contains a record of an account of the alleged offences made by (the complainant);

but not including any protected confidence as defined in s 79 of the Evidence (Miscellaneous Provisions) Act 1991.

There was a further reduction, on 8 April 2022, in the scope of the documents sought. The documents now being sought are:

Copies of records relating to a claim for financial assistance made to the victims services scheme by or on behalf of (the complainant), date of birth XXXX, relating to alleged offences committed upon her by Kevin Malone, date of birth XXXX, as follows:
Pages 1 and 2, sections 1, 2,…

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 Malone (No 3)

Details

AGLC: R v Malone (No 3) [2022] ACTSC 74
Case: [2022] ACTSC 74
Decision Date

CaseChat Overview and Summary

The case of R v Malone (No 3) involved the Victims of Crime Commissioner (the applicant) and Kevin Malone (the respondent) before Elkaim J in the Supreme Court of the Australian Capital Territory. The central dispute was whether the Commissioner was legally required to produce certain documents relating to a claim for victims' compensation made by the complainant, a minor, against the respondent. The respondent sought these documents under a subpoena to use them in his defence, alleging that the complainant fabricated the accusations against him to gain financial compensation. The Commissioner objected to the production of these documents, asserting that they were protected confidences and that producing them would cause harm to the complainant.

The court was required to decide whether the Commissioner had a discretion to refuse to produce the documents and whether the documents qualified as protected confidences under the Evidence Act 2011 (ACT). The court first considered whether the Court Procedures Rules 2006 (ACT) constituted "another law applying in the Territory" as per the Victims of Crime Act 1994 (ACT) and the Victims of Crime (Financial Assistance) Act 2016 (ACT). The court concluded that the Rules were indeed a law of the Territory and that a subpoena under the Rules necessitated the production of the documents. The court further found that the Commissioner's discretion did not extend to overriding the legal requirement to produce documents under a subpoena.

The court then addressed the Commissioner's alternative argument that the documents were protected confidences and that their production would cause harm to the complainant. The court considered various factors outlined in the Evidence Act, such as the probative value of the documents, the seriousness of the offence, and the public interest in preserving the confidentiality of protected confidences. The court determined that the probative value of the documents was low, as the application for compensation had already been disclosed. Moreover, the court found that the public interest in maintaining the confidentiality of such communications significantly outweighed the desirability of the documents being presented in court. Consequently, the subpoena was set aside.

In summary, the court set aside the subpoena on the basis that the documents were protected confidences, and producing them would cause harm to the complainant. The court's decision protected the confidentiality of the communications between the complainant and the Commissioner, reinforcing the public interest in maintaining such confidentiality.

Orders