R v Nash
[2021] ACTSC 169
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Nash |
Citation: | [2021] ACTSC 169 |
Hearing Date: | 27 July 2021 |
DecisionDate: | 27 July 2021 |
Before: | Loukas-Karlsson J |
Decision: | The prosecution is granted leave to disclose the protected confidence evidence contained in the Domestic Violence Crisis Service documents and the Canberra Rape Crisis Centre documents. The protected confidence evidence is admissible in the trial of the accused. |
Catchwords: | CRIMINAL LAW – EVIDENCE – Evidence in sexual offence proceedings – application by the Crown for disclosure of a protected confidence – legitimate forensic purpose – whether court satisfied an arguable case – preliminary examination conducted – leave granted to disclose protected confidence |
Legislation Cited: | Evidence Act 2011 (ACT) s 66 Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 79, 79A, 79D, 79E, 79F, 79G, 79H |
Cases Cited: | R v Chute (No 5) [2019] ACTSC 52 R v NS [2016] ACTSC 346; 315 FLR 261 |
Texts Cited: | Director of Public Prosecutions (ACT), The Prosecution Policy of the Australian Capital Territory (1 April 2021) |
Parties: | The Queen (Crown) Sammual James Nash (Accused) |
Representation: | Counsel A Chatterton (Crown) J Sabharwal (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Armstrong Legal (Accused) | |
File Number: | SCC 272 of 2020 |
LOUKAS-KARLSSON J:
Introduction
Sammual James Nash (the accused) is due to stand trial on 13 September 2021 on an indictment containing one count of an act of indecency without consent and two counts of sexual intercourse without consent. All three counts are alleged to have been committed against the accused’s former partner, NN (the complainant) on 7 February 2013.
The prosecution in this matter brought an application dated 20 July 2021 seeking leave to disclose to the accused documents that may amount to protected confidence evidence within the meaning of Div 4.4.3 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMP Act). The prosecution also sought an order that the protected confidence evidence be admissible in the trial proceeding. The application was brought so as to enable the prosecution to comply with its disclosure obligations.
Relevant Legislation
Division 4.4.3 of the EMP Act provides the relevant framework for the protection of counselling communications in sexual offence proceedings.
Section 79A of the EMP Act states the following:
79AMeaning of protected confidence—div 4.4.3
(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).
(2)A counselling communication is a protected confidence even if––
(a)it is made before the happening, or alleged happening, of the acts constituting the sexual offence; or
(b)it is not made in relation to––
(i) the sexual offence or any sexual offence; or
(ii)a condition arising from the sexual offence or any sexual offence.
(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—
(a)by the counselled person to a counsellor for the purpose, or in the course, of the counselling relationship between the counselled person and the counsellor; or
(b)to or about the counselled person by the counsellor for the purpose, or in the course, of the counselling relationship between the counselled person and the counsellor; or
(c)by the counselled person to 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; or
(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; or
(e)about 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 to—
(i) the counselled person; or
(ii)the counsellor; or
(iii)another third party to whom subsection (4) applies; or
(f)about the counselled person by a counsellor to someone else who has also been a counsellor for the counselled person; or
(g)about the counselled person to a counsellor by someone else who has also been a counsellor for the counselled person.
(4)For this section, in deciding whether a communication was made in circumstances that gave rise to a reasonable expectation of confidentiality, 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.
Examples—third parties
1 a parent, partner, carer, spiritual adviser or other supportive person
2 a person present at the request of the counsellor to take notes of the counselling session
(5)In this section:
sexual offence includes alleged sexual offence.
Section 79 of the EMP Act contains definitions of key terms that are used throughout Div 4.4.3. It includes the following:
document recording a protected confidence includes––
(a)a copy, reproduction, republication, duplicate or summary of, or extract from, a document recording a protected confidence; and
(b)the part of a document recording a protected confidence; and
(c)the part of a document containing a report, observation, opinion, advice, recommendation or anything else in relation to a protected confidence that is—
(i) made or given by the person who made the protected confidence; or
(ii)made or given by a third party mentioned in section 79A (4) in whose presence the protected confidence is made; and
(d)a copy, reproduction, republication, duplicate or summary of, or extract from, the part of a document mentioned in paragraph (b) or (c).
protected confidence––see section 79A (1).
protected confidence evidence means––
(a)oral or written evidence that would disclose a protected confidence; or
(b)a document recording a protected confidence; or
(c)oral or written evidence that would disclose the contents of a document recording a protected confidence.
Section 79D of the EMP Act establishes a general immunity for protected confidences. It provides as follows:
79DGeneral immunity for protected confidences
(1)This section applies in relation to a proceeding.
(2)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.
(3)Without limiting subsection (2)––
(a)a person cannot be required (whether by subpoena, application, notice or any other procedure), in or in relation to the proceeding, to produce a document recording a protected confidence, unless the court gives leave; and
(b)protected confidence evidence is not admissible in the proceeding, unless the court gives leave.
Example––par (a)
A person could not be required to disclose a protected confidence in response to a request for production of documents in a proceeding unless the court gives leave.
An application for leave to disclose a protected confidence must: be in writing; set out the leave sought; and set out the applicant’s arguments in support of the application: s 79E(1) EMP Act. An application must also briefly address the nature of the protected confidence evidence, if it is known to the applicant: s 79E(2)(a) EMP Act.
Section 79F of the EMP Act contains a threshold test that must be satisfied before the Court determines whether to permit disclosure. It provides as follows:
79FThreshold test––legitimate forensic purpose
(1)The court must refuse the leave sought under section 79E if not satisfied that the applicant has established a legitimate forensic purpose for seeking the leave.
(2)To establish a legitimate forensic purpose, the applicant must—
(a)identify a legitimate forensic purpose for seeking the leave; and
(b)satisfy the court that there is an arguable case that the evidence in relation to which the leave is sought would materially assist the applicant’s case in the proceeding.
(3)The court must decide whether or not to refuse the application under this section before it conducts a preliminary examination of the protected confidence evidence under section 79G.
If a Court is satisfied that the applicant has established a legitimate forensic purpose for seeking leave, it is then necessary to consider s 79G of the EMP Act which states the following:
79GPreliminary examination of protected confidence evidence
(1)If the court is satisfied that the applicant has established a legitimate forensic purpose for seeking the leave, the court must then conduct a preliminary examination of the protected confidence evidence to decide whether leave should be given.
(2)For the preliminary examination, the court may––
(a)require anyone who has custody or control of a document recording a protected confidence to produce the document to the court for inspection; or
(b)require the counsellor or, if the counsellor provides counselling on behalf of an entity, the principal or another representative of the entity––
(i) to give the court written answers to any questions; or
(ii)to attend the court for oral examination.
(3)The court must not order a person to attend for oral examination under subsection (2) (b) (ii) unless the oral examination of the person is necessary for the effective conduct of the preliminary examination.
(4)Only a person mentioned in subsection (2) may be ordered to answer questions or be examined under this section.
(5)The preliminary examination must be conducted––
(a)in the absence of the public and the jury (if any); and
(b)in the absence of the parties to the proceeding and their lawyers, except to the extent otherwise decided by the court.
(6)Evidence taken at the preliminary examination must not be disclosed to the parties or their lawyers, except to the extent otherwise decided by the court or an appellate court under section 79H (6).
(7)A record of the preliminary examination must be made, but must not be made available for public access.
After conducting the preliminary examination, the Court must then consider the matters in s 79H of the EMP Act in deciding whether to grant leave for the disclosure. Section 79H provides:
79HGiving of leave to disclose protected confidence
(1)After conducting the preliminary examination of the protected confidence evidence, the court may give leave for the disclosure of the protected confidence only if satisfied that—
(a)for a civil proceeding—the public interest in ensuring the proceeding is conducted fairly outweighs the public interest in preserving the confidentiality of the protected confidence; or
(b)for a criminal proceeding—the public interest in ensuring an accused person in the proceeding is given a fair trial outweighs the public interest in preserving the confidentiality of the protected confidence.
(2)To remove any doubt, if the court is satisfied under subsection (1) about part of a document only, it may give leave in relation to that part and refuse leave for the rest of the document.
(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.
(4)Subsection (3) does not limit the matters to which the court may have regard.
(5)Leave under this section may be given subject to conditions.
(6)If the court refuses to give leave, and an appeal is made against the refusal, or a ground of an appeal is the refusal, the appellate court may examine the evidence taken at the preliminary examination under section 79G and may make the orders about the disclosure of the evidence it considers appropriate.
If the Court gives leave for the disclosure of protected confidence evidence, s 79I of the EMP Act empowers the court to make ancillary orders to protect the person who made the protected confidence:
79I Ancillary orders for protection of person who made protected confidence
(1)The court may make any order it considers appropriate to limit possible harm, or the extent of possible harm, to a person who made a protected confidence by the disclosure of protected confidence evidence.
(2)Without limiting subsection (1), the court may––
(a)order that the court be closed to the public while all or part of the protected confidence evidence is presented; or
(b)for a document recording a protected confidence––order that a document be edited as directed by the court or that a copy of a document (or part of a document) be disclosed instead of the original; or
(c)make orders in relation to the suppression or publication of all or any part of the protected confidence evidence; or
(d)for a document recording a protected confidence––make orders about the production or inspection of the document; or
(e)make orders in relation to the disclosure of—
(i) protected identity information about the person who made the protected confidence; or
(ii)information that discloses the identity of the person who made the protected confidence; or
(iii)information from which the identity of the person who made the protected confidence might reasonably be inferred.
(3)This section is in addition to section 74 (Prohibition of publication of complainant’s identity).
(4)In this section:
protected identity information means information about, or allowing someone to find out, the private, business or official address, email address or telephone number of a person.
Application to the Instant Matter
Are the documents protected confidence evidence?
On 20 July 2021, the prosecution in this matter were informed by the police informant that the Australian Federal Police were in possession of documents prepared by the Domestic Violence Crisis Service (the Domestic Violence Crisis Service documents). The police informant notified the prosecution that the documents include details of a contemporaneous complaint made by the complainant, concerning the offences that are the subject of the current indictment. The prosecution submitted that the evidence of complaint recorded in the document is a protected confidence, pursuant to the definition contained within s 79A of the EMP Act.
At the hearing on 27 July 2021, the prosecution notified the Court that the police informant was also now in possession of documents prepared by the Canberra Rape Crisis Centre (the Canberra Rape Crisis Centre documents). The police informant had instructed the prosecutor that this document also includes details of a contemporaneous complaint made by the complainant in relation to the offences that the accused is to stand trial for. The prosecution submitted that the evidence of complaint recorded in the documents prepared by the Canberra Rape Crisis Centre was also a protected confidence as defined in s 79A of the EMP Act.
Having regard to the outline of the nature of the protected confidence evidence in the prosecution’s arguments in support of the application, I am satisfied that both the Domestic Violence Crisis Service documents and the Canberra Rape Crisis Centre documents record a protected confidence. I am satisfied the documents are protected confidence evidence within the definitions outlined in ss 79 and 79A of the EMP Act.
Is the application compliant with requirements?
Counsel for the prosecution broached the new information in relation to the Canberra Rape Crisis Centre documents at the outset of the hearing and sought to include those documents in its application. So as to ensure compliance with the requirement that the application be in writing within s 79E of the EMP Act, the prosecution was granted leave to amend the application in proceeding in court. The amendment was not objected to by counsel for the accused.
In light of the amendment made to include the reference to the Canberra Rape Crisis Centre documents, the prosecution’s application in the present matter complies with the requirements of s 79E of the EMP Act.
Has the prosecution established a legitimate forensic purpose for seeking the leave?
In dealing with the prosecution’s application, I have adopted the approach as set out by Refshauge J in R v WR (No 2) [2009] ACTSC 110 at [33] under the previous legislative scheme in the EMP Act. This has been applied in relation to Div 4.4.3 of the EMP Act by Mossop J in R v Chute (No 5) [2019] ACTSC 52 at [3] and Crowe AJ in R v Sirl [2019] ACTSC 225 at [17]. That approach requires me to first consider whether there is a legitimate forensic purpose pursuant to s 79F of the EMP Act. If I am so satisfied, I then conduct the preliminary examination of the document recording the protected confidence under s 79G of the EMP Act before determining whether to grant leave for the disclosure pursuant to s 79H of the EMP Act.
The threshold test in s 79F of the EMP Act contains two limbs, both of which must be satisfied to establish a legitimate forensic purpose. Firstly, the applicant must identify a legitimate forensic purpose for seeking the leave. Secondly, the applicant must satisfy the court that there is an arguable case that the evidence to which the leave is sought would materially assist the applicant’s case in the proceeding.
The legitimate forensic purpose
The prosecution submitted that the documents recording the protected confidence was a matter that fell to be disclosed to the accused pursuant to the prosecution’s disclosure obligations. The prosecution referred to the disclosure obligations that are outlined within Chapter 4 of The Prosecution Policy of the Australian Capital Territory and the prosecutor’s duties that are set out in the Legal Profession (Barristers) Rules 2021 (ACT).
The prosecution identified its continuing disclosure obligations as the legitimate forensic purpose for seeking the leave.
The arguable case
The prosecution submitted that there is an arguable case that the protected confidence evidence would materially assist the prosecution’s case at trial. The prosecution advanced this submission on the basis that the protected confidence evidence is evidence of complaint.
It was noted that complaint evidence is admissible pursuant to s 66(2) of the Evidence Act 2011 (ACT) upon the complainant giving evidence at the trial of the accused. The prosecution confirmed that it was anticipated the complainant would give evidence.
The prosecution submitted that the evidence had the capacity to be relevant to the truthfulness of the complainant’s anticipated evidence, and regarded as additional evidence that the complainant was assaulted in the manner in which it is anticipated she will give evidence.
Consideration
I note that counsel for the accused did not wish to be heard in relation to the threshold test and did not cavil with the prosecution’s submission. Nevertheless, I must form my own conclusions in relation to the matter. In light of the prosecution’s continuing disclosure obligations and the arguable case, I am satisfied that the prosecution has established the threshold test in s 79F. Complaint evidence is relevant to a fact in issue. Consistency of complaint or otherwise is a relevant matter.
The preliminary examination
As I am satisfied that the prosecution has established a legitimate forensic purpose for seeking the leave, I must then conduct a preliminary examination of the protected confidence evidence to determine whether leave should be given. Section 79G(2) provides the Court with two alternative means of conducting the preliminary examination. The first way to conduct the preliminary examination is to require anyone who has custody or control of a document recording a protected confidence to produce the document to the court for inspection: s 79G(2)(a) EMP Act. The second method is to require the counsellor, the principal or other representative of the entity on behalf of whom the counselling was provided to give the court written answers to any questions or to attend the court for oral examination: s 79G(2)(b) EMP Act. Regardless of the method adopted, the preliminary examination is to be conducted in the absence of the public and the jury (if there is a jury) and in the absence of the parties and their legal representatives, except to the extent otherwise decided by the Court: s 79G(5) EMP Act.
The prosecution made an Australian Federal Police officer who had custody of the document recording a protected confidence available for the hearing of the application. That police officer had the document available in a sealed envelope for inspection.
I determined that the preliminary examination was to proceed by requiring the police officer to produce the documents to myself for inspection. Pursuant to the obligation in s 79G(7) of the EMP Act to make a record of the preliminary examination, I made a copy of the document to be kept on the court file in separate sealed envelopes clearly marked “not for public access”.
Should leave be given for the prosecution to disclose the protected confidence?
After completing the preliminary examination, I must then decide whether to grant the prosecution leave to disclose the document recording the protected confidence by having regard to the matters set out in s 79H of the EMP Act.
Section 79H(1)(b) of the EMP Act provides that the Court may give leave in a criminal proceeding only if it is satisfied that the public interest in ensuring an accused person in the proceeding is given a fair trial outweighs the public interest in preserving the confidentiality of the protected confidence.
In making a decision under s 79H(1)(b), I must have regard to the factors in s 79H(3) of the EMP Act. I note that the prosecution addressed the factors in s 79H(3) of the EMP Act in their written arguments in support of the application. At the hearing, counsel for the accused confirmed he did not wish to be heard and did not oppose the prosecution’s application.
The extent to which disclosure of the protected confidence is necessary for an accused person to make a full defence – s 79H(3)(a)
The prosecution submitted that disclosure would be consistent with the continuing disclosure obligations placed on the prosecution. It was submitted that one of the aims of the prosecution’s continuing disclosure obligations is to ensure an accused person can make a full defence and meet the proposed evidence of complaint in the prosecution’s case.
The public interest in ensuring that victims of sexual offences receive effective counselling or other treatment – s 79(H)(b)
The prosecution submitted that disclosure in the instant matter would not impact on the public interest in ensuring that victims receive effective counselling.
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 – s 79H(3)(c)
It was submitted by the prosecution that disclosure in this matter would not act as a means of dissuading victims from seeking counselling nor diminish its value.
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 – s 79H(3)(d)
In referring to the capacity of the protected confidence evidence to be used as complaint evidence in the trial, the prosecution submitted that the evidence will have a substantial probative value in relation to the primary fact in issue in the proceeding. The protected confidence evidence goes to whether or not the accused engaged in sexual intercourse with the complainant without her consent on the relevant date.
The likelihood that disclosure of the protected confidence will affect the outcome of the case – s 79H(3)(e)
The prosecution submitted that depending on the weight given to the complaint evidence by the tribunal of fact at trial, the protected confidence evidence has the capacity to affect the ultimate outcome of the proceeding.
Whether disclosure of the protected confidence is sought on the basis of a discriminatory belief or bias – s 79H(3)(f)
The prosecution confirmed that it was not seeking to disclose the protected confidence evidence having regard to any discriminatory belief or bias.
Whether the person to or by whom the protected confidence was made objects to the disclosure of the protected confidence – s 79H(3)(g)
The prosecution also confirmed that the complainant does not object to the disclosure of the protected confidence evidence.
At the hearing, counsel for the prosecution informed the Court that both the Domestic Violence Crisis Service and the Canberra Rape Crisis Service had been provided with the complainant’s consent to release the information to the Australian Federal Police. Both organisations complied with the requests to release the information to the Australian Federal Police.
The nature and extent of the reasonable expectation of confidentiality for the protected confidence and the potential 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 – s 79H(3)(h)
The prosecution submitted that as the complainant did not object to the disclosure of the protected confidence, the complainant was cognisant of the nature and extent of the reasonable expectation of confidentiality for the protected confidence evidence.
Consideration
In the usual case, such an application is brought by the accused. In this case, it is brought by the prosecution and counsel for the accused does not oppose. Nevertheless, the Court must form its own view.
In R v NS [2016] ACTSC 346; 315 FLR 261 at [36], Burns J made the following observations about the predecessor to s 79H(1)(b) of the EMP Act:
The weighing exercise required by s 62(1)(b) requires the court to consider the public interest in ensuring that an accused person is given a fair trial. The right to a fair trial is a fundamental right recognised by the common law, and guaranteed by s 21 of the Human Rights Act 2004 (ACT). A fair trial would ordinarily be one where the accused has access to, and can use, all relevant evidence. The provisions of the Act governing the adducing of evidence of restricted confidences clearly provide a restriction upon the ability of an accused person to access and use otherwise relevant evidence, effecting a restriction on those conditions which would ordinarily be thought necessary for a fair trial. Such a restriction should be interpreted as extending no further than the language the Act requires; see Momcilovic v The Queen [2011] HCA 34; 245 CLR 1 at [43].
In the circumstances of this case, I conclude that the public interest in seeing that the accused receives a fair trial outweighs the public interest in preserving the confidentiality of the protected confidences. The evidence of a complaint close in time to the alleged offences is relevant evidence. Proper prosecution disclosure is required for a fair trial. I am satisfied that the Domestic Violence Crisis Service documents and the Canberra Rape Crisis Centre documents are important to the right of the accused to a fair trial. In my view, balancing the factors in s 79H(3) of the EMP Act leads to the conclusion that the disclosure of the documents would not discourage victims of sexual assault from seeking counselling or other treatment or interfere with the provision of such services.
Ancillary orders
After informing the parties that I was satisfied that the public interest in ensuring the accused is given a fair trial outweighs the public interest in preserving the confidentiality of the protected confidence and that the prosecution would be granted leave to disclose the protected confidence evidence, I enquired with the parties whether any ancillary orders were sought pursuant to s 79I of the EMP Act.
Counsel for the accused confirmed that no such orders were sought on behalf of the accused. Counsel for the prosecution sought to reserve his position as to ancillary orders until after he had the opportunity to peruse the Domestic Violence Crisis Service documents and the Canberra Rape Crisis Centre documents, to determine whether any ancillary orders were appropriate to limit possible harm to the complainant by the disclosure of the protected confidence evidence. Counsel for the prosecution was granted liberty to approach chambers if an ancillary order was sought.
Orders
I make the following orders:
(a) The prosecution is granted leave to disclose to the accused evidence of complaint recorded as a protected confidence in documents prepared by the Domestic Violence Crisis Service and documents prepared by the Canberra Rape Crisis Centre in respect of the complainant.
(b) Leave is granted for the protected confidence evidence contained within the Domestic Violence Crisis Service documents and the Canberra Rape Crisis Centre documents to be admissible in the trial of the accused on the indictment for SCC 272 of 2020.
| I certify that the preceding forty-five [45] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson Associate: Rhiannon McGlinn Date: 4 August 2021 |
4
0