R v NBB
[2020] ACTSC 75
•9 April 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v NBB |
Citation: | [2020] ACTSC 75 |
Hearing Date: | 7 April 2020 |
DecisionDate: | 9 April 2020 |
Before: | Mossop J |
Decision: | See [14] |
Catchwords: | CRIMINAL LAW – EVIDENCE – Leave to issue subpoenas – disclosure of protected confidences – Division 4.4.3 Evidence (Miscellaneous Provisions) Act 1991 (ACT) – legitimate forensic purpose – whether court satisfied an arguable case that the documents would materially assist applicant’s case in the proceedings – possible contamination of complaints by knowledge of other complaints – appropriate to grant leave to issue a subpoena to named person |
Legislation Cited: | Criminal Code 2002 (ACT), s 720 Evidence (Miscellaneous Provisions) Act1991 (ACT), div 4.4.3 |
Cases Cited: | R v Chute (No 5) [2019] ACTSC 52 R v WR (No 2) [2009] ACTSC |
Parties: | The Queen (Crown) NBB (Accused) |
Representation: | Counsel K Lee (Crown) D Berents (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson (Accused) | |
File Numbers: | SCC 228 of 2019 SCC 230 of 2019 SCC 293 of 2019 |
MOSSOP J:
The accused person, who will be referred to as NBB, is facing 22 charges alleging sexual offending committed against three young persons.
By Application in Proceeding dated 28 February 2020, NBB has sought leave to issue two subpoenas to persons whose records may disclose protected confidences within the meaning of Div 4.4.3 of the Evidence (Miscellaneous Provisions) Act1991 (ACT) (EMP Act). The subpoenas are sought to be issued to a named psychologist and an entity described as “ACT [redacted] Services”. The precise identity of the latter proposed recipient is an issue to which I will return later in these reasons.
In dealing with this application I have adopted the same approach as I did in R v Chute (No 5) [2019] ACTSC 52 (Chute (No 5)). There I dealt with a similar application in the manner approved by Refshauge J in R v WR (No 2) [2009] ACTSC 110 at [33]. That involved first considering whether there was a legitimate forensic purpose under s 79F of the EMP Act for the disclosure of the protected confidences and then, if so satisfied, permitting a subpoena to be issued in order to obtain the documents so as to be able to conduct a preliminary examination of them under s 79G before deciding under s 79H whether to give leave for the disclosure of the protected confidence.
Section 79F obliges the court to refuse leave if the court is not satisfied that the applicant has established a “legitimate forensic purpose” for seeking the leave. In order to establish such a purpose, s 79F(2) requires the applicant to:
(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.
The factual circumstances of this case are unusual. The subpoenas for which leave is sought seek to obtain documents from a psychologist. That psychologist is the mother of one of the alleged victims (J). A client of the psychologist (H) is the mother of one of the other alleged victims (D). D’s sister, L, is also a client of the psychologist. Another client of the psychologist is one of the stepchildren of the accused (C), who is a sister of the third alleged victim (A).
C told the psychologist of the allegations of sexual abuse made by A in 2016. The psychologist was subsequently told by her son, J, of his alleged abuse by the accused. The same day, H contacted the psychologist informing her that D had been exhibiting sexualised behaviour similar to that which his sister L had previously exhibited. At that point the psychologist told H that her own son, J, had been sexually abused by the accused and suggested that the accused was doing the same to D. It was after that conversation that there was a conversation between H and D about whether the accused had touched him, during which D made disclosures of abuse.
The issue that is raised by the accused is whether or not the complaint ultimately made by D was affected by what was known by H and the psychologist about the allegations made by J and A.
There is some evidence that, prior to talking to H, the psychologist had looked through her files so as to correlate the occasions when D had exhibited concerning behaviours and the times that he had stayed at the accused’s house.
In general terms, the documents containing protected confidences which were sought in the schedule to the proposed subpoenas would capture counselling communications between the psychologist and H, C, L and D concerning sexual misconduct by the accused, contact between the accused and D and occasions when the accused visited or stayed at the residence of D.
As a result of the constructive and appropriate consultation between counsel for the accused and counsel for the Crown, the terms of the schedule of the proposed subpoenas were adjusted so as to accommodate issues raised by the Crown in relation to the scope of the schedule as it had previously been drafted. The position was reached that while the Crown maintained its submission that the possible significance of the content of the documents the subject of the subpoenas was too speculative to satisfy the threshold test in s 79F, the Crown had no additional objection in relation to the formulation of items in the schedule.
Notwithstanding the submissions made on behalf of the Crown that the possible relevance of the evidence was too speculative to establish a legitimate forensic purpose within the meaning of s 79F(2), I am satisfied that the threshold requirement is met. Even though there is already some evidence as to:
(a)the circumstances in which the psychologist and H discussed the issue of possible sexual abuse prior to H discussing the issue with the D; and
(b)the nature of the discussions between H and D which led to his disclosure of sexual abuse;
the unusual circumstances of the case mean that exploration of those interactions by the accused is a legitimate forensic purpose for the purposes of s 79F(2)(a). Further, there is an arguable case (in the sense that I approached that expression in Chute (No 5) at [19]) that the evidence would materially assist the accused’s case in the proceeding. The reason is that there is a reasonable prospect that the material would provide a basis for a submission that the complaints made by D were contaminated by the knowledge of other allegations obtained by H prior to speaking to him and there is a reasonable prospect that the records will provide a basis to challenge the hypothesis that the changes in behaviour by D occurred after he had been in the presence of the accused.
It is therefore appropriate to permit a subpoena to be issued to the named psychologist in substantially the form of the schedule which was provided by counsel for the accused following the hearing. That is subject to some minor corrections which I have made in order to clarify the operation of various items in the schedule. If any of those alterations effect a substantive change that is inconsistent with the intention of either of the parties then they have leave to bring that issue to my attention.
The second subpoena which was sought to be issued was a subpoena addressed to “ACT [redacted] Services”. There is no evidence as to whether this is a corporate entity or a trading name for a person or corporate entity. In those circumstances it is not appropriate to permit any subpoena to be issued. Fundamental to the issue of a subpoena is the capacity to enforce the subpoena either by contempt proceedings or by criminal prosecution of an offence such as that under s 720 of the Criminal Code 2002 (ACT). That depends on precise identification of the natural or artificial person upon whom the subpoena is served. The proposed subpoena to “ACT [redacted] Services” does not precisely identify the relevant entity.
The orders of the Court are:
1. The accused has leave to issue a subpoena to the named psychologist with the schedule which has been initialled and dated by me and placed on the file.
2. The subpoena must bear an endorsement on its front page: “This subpoena is issued for the purposes of s 79G of the Evidence (Miscellaneous Provisions) Act 1991 (ACT)”.
3. The subpoena is to be returnable before Mossop J on a date to be fixed by the Registrar.
4. The parties have leave to communicate with my associate in the event that the amendments made by me to the schedule fail to reflect the intention of the parties.
5. The accused has liberty to file within seven days a further affidavit going to the proper identification of any other entity to which a subpoena with the same schedule as the subpoena to [redacted] should be issued. That affidavit must identify whether the Crown wishes to be further heard in relation to the issuing of a subpoena to that entity.
| I certify that the preceding fourteen [14] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 14 August 2020 |
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Amendment
14 August 2020 Replace “a client of H” with “a client of the psychologist” Paragraph: [5]
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