R v NBB (No 3)
[2020] ACTSC 108
•8 May 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v NBB (No 3) |
Citation: | [2020] ACTSC 108 |
Hearing Date: | 7 April 2020 |
DecisionDates: | Orders 29 April 2020, Reasons 8 May 2020 |
Before: | Mossop J |
Decision: | See [12] |
Catchwords: | CRIMINAL LAW – EVIDENCE – Subpoenas – application for leave to disclose protected confidences – psychologist’s records – not records of the complainants – public interest in ensuring sexual abuse victims receive counselling therefore not relevant – material of limited probative value – leave to disclose redacted versions of the material. |
Legislation Cited: | Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 79A, 79E, 79F, 79H |
Cases Cited: | R v NBB [2020] ACTSC 75 |
Parties: | The Queen (Crown) NBB (Accused) |
Representation: | Counsel K Lee (Crown) D Berents (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson Solicitors (Accused) | |
File Numbers: | SCC 228 of 2019 SCC 230 of 2019 SCC 293 of 2019 |
MOSSOP J:
This is an application for leave to disclose protected confidences under s 79E of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). Leave was granted to issue a subpoena for the purposes of s 79F of the Act: R v NBB [2020] ACTSC 75. In these reasons I adopt the same method of identifying relevant persons as I did in my earlier reasons at [5].
I have inspected the documents produced by the psychologist.
In relation to item 1 on the subpoena, the documents produced showing when counselling occurred are not protected confidences. They should be disclosed.
No documents were produced in relation to item 6.
That leaves documents comprising counselling communications between the psychologist and H, C and L (items 2-5 in the schedule to the subpoena). Those records have been redacted by the psychologist so that the only material exposed is that which falls into the categories identified in item 3(a)-(c), item 4(a)-(c) and item 5(1)-(2) of the schedule to the subpoena.
Section 79H(1)(b) provides that the court may give leave for the disclosure of the protected confidence only if 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. Section 79H(3) identified a series of matters to which the court must have regard.
Dealing with the various paragraphs in s 79H(3), the position is as follows:
(a)The subpoena material will provide some evidence in relation to the transactions leading to one of the complaints. The highest that it can be put is that it will provide some evidence that may be of relevance to the defence.
(b)The public interest in ensuring that victims of sexual offences receive effective counselling is not relevant, as the records are not those of persons alleging sexual offending, but rather other persons involved in the unusual matrix of events.
(c)As a result, it is not a matter where the disclosure would dissuade victims of sexual offences from seeking counselling or treatment.
(d)It is not possible to say that the material will have substantial probative value. The material may have some direct probative value in relation to what was said during the consultations or as to the timing of visits by the accused to H’s house. They may also have some significance for the purposes of cross-examining H.
(e)It is unlikely that the disclosure of the protected confidence will affect the outcome of the case.
(f)The disclosure of the protected confidences is not sought on the basis of a discriminatory belief or bias.
(g)The psychologist does not object to the disclosure of the protected confidences so long as that disclosure is made in the redacted form. I have no information about the attitude of the clients L, C or H to disclosure generally or the limited form of disclosure proposed.
(h)There is a reasonable expectation of confidentiality for the protected confidence material. That has not been significantly lessened by the passage of time.
On the assumption that the material does involve protected confidences, clearly this is not an overwhelming case for disclosure of the relevant material. However, the application for leave does not directly collide with the central purpose of the provisions, namely the protection of victims of sexual assault from having counselling records disclosed.
Item 2 in the schedule seeks the notes relating to the counselling session in February or March 2019, during which a particular statement was made by the psychologist. These notes have also been redacted consistent with the categories in item 3(a)-(c). Item 3(a) extends to alleged sexual misconduct by the accused. Although item 2 seeks the documents (i.e. the whole documents) rather than those parts in which particular subjects are disclosed, I will only grant leave in relation to the redacted documents in item 1 which disclosed those parts relevant to allegations against the accused. The fact that the disclosed material does not in fact refer to the statement referred to in item 1 may itself be a matter of significance. Any broader disclosure is not presently justified and would raise different considerations in relation to which it would be necessary (if it is a protected confidence) to hear from the psychologist.
In relation to items 3, 4 and 5 the material is targeted at the issues identified in the subpoena which the accused wishes to explore. The potential relevance of the material is that it provides some evidence of the nature of the interactions between the psychologist and H, the mother of one of the complainants. Further, the documents provide some records relating to when there was contact between the accused and the complainant. It is not apparent that the material will be of great significance for the defence case. It is nevertheless appropriate, in my view, to grant leave to access it in order to ensure that the defence case may be properly presented.
I am 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 confidences that would be disclosed by disclosure of the documents produced in their redacted form.
The orders of the Court are:
1. Leave is granted to disclose for the purposes of proceedings the redacted form of the documents produced in response to the subpoena dated 16 April 2020.
2. Access to the documents the subject of order 1 is granted to both parties.
3. The unredacted records produced in response to the subpoena dated 16 April 2020 are to be kept in a sealed envelope which is not to be opened without an order of the judge.
| I certify that the preceding twelve [12] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 8 May 2020 |
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