R v NS
[2016] ACTSC 346
•25 November 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v NS |
Citation: | [2016] ACTSC 346 |
Hearing Date: | Application In Chambers |
DecisionDate: | 25 November 2016 |
Before: | Burns J |
Decision: | See [42] |
Catchwords: | CRIMINAL LAW – Particular Offences – offences against the person – acts of indecency on a child under age of 10 years –sexual abuse disclosed after significant time elapsed – complainant underwent treatment for mental health issues. EVIDENCE – Evidence in Sexual and Violent Offence Proceedings – application by accused for protected confidences to be disclosed – legitimate forensic purpose identified – preliminary examination conducted – whether s 61 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) “gateway” provision. |
Legislation Cited: | Criminal Procedure Act 1986 (NSW) ss 298, 299D Evidence Act 1906 (WA) ss 19C, 19E Human Rights Act 2004 (ACT) s 21 |
Cases Cited: | ER v Khan [2015] NSWCCA 230 In the matter of an application by Donald FrancisMcInnes [2009] ACTSC 29; 194 A Crim R 377 Momcilovic v The Queen [2011] HCA 34; 245 CLR 1 |
Texts Cited: | Explanatory Statement, Evidence (Miscellaneous Provisions) Amendment Act 2003 (ACT) |
Parties: | NS (Applicant) The Queen (Respondent) |
Representation: | Solicitors Ben Aulich & Associates (Applicant) ACT Director of Public Prosecutions (Respondent) |
File Number: | SCC 52 of 2016 |
BURNS J:
The accused is charged with two counts of committing an act of indecency on a person under the age of 10 years. The complainant is his biological daughter. The events which give rise to the charges are alleged to have occurred in August 2004, around the time of the complainant’s sixth birthday.
The complainant is now 18 years old. She has suffered significant mental health issues since 2004. In October 2004, police conducted an interview with her due to concerns that she had been sexually abused. In that interview the complainant did not disclose any sexual abuse. The complainant underwent treatment for her mental health issues over many years. It was not, as I understand it, until January 2015, when she was 16 years old, that the complainant disclosed to her mother and step-father that the accused had sexually abused her when she was 5 or 6 years old.
The accused pleaded not guilty to the charges and is awaiting trial. By an application in proceedings dated 20 July 2016 the accused sought orders pursuant to s 58 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the Act) that he be granted leave to issue subpoenas compelling the disclosure of protected confidences to a number of named individuals and organisations that had provided treatment to the complainant in the past. Such an order can only be made where the court is satisfied that there is a legitimate forensic purpose for the leave sought. In his application, the accused identified the forensic purpose for the leave sought as follows:
After years of failing to disclose any sexual impropriety in response to direct questioning, the complainant, [redacted for legal reasons], makes a complaint against a background of significant mental health issues, psychosis and the input of psychologists and psychiatrists and the possible effect of medication. The accused ought in fairness have access to the material to determine whether the “recent memory” is explicable by any of those matters or any combination of them.
The application came before Murrell CJ on 15 August 2016. For convenience, I will refer to the accused as the applicant in these reasons. Two affidavits sworn by the applicant’s solicitor were read at the hearing of the application. Those affidavits disclosed that the applicant had retained Professor Donald Thomson, a psychologist and expert in children’s memory, to provide an opinion about the reliability of the account given by the complainant in January 2015 of events said by her to have occurred in August 2004. Annexed to the affidavit sworn on 10 August 2016 was a preliminary report by Professor Thomson in which he referred to the following material with which he had been briefed:
(a)a progress note from the Queanbeyan Mental Health Service dated 29 August 2014 recording that the complainant’s stepfather informed staff at the Service that the complainant had possibly been ‘sexually abused when she was 5 years old’;
(b)a discharge letter from Shellharbour Adolescence Mental Health Inpatient Unit dated 18 September 2014 which refers to a history of sexual abuse by the applicant when the complainant was five years old, but noting that no evidence was found, that no charges had been laid, and that details of the alleged abuse remained ‘undisclosed/unclear’;
(c)a letter dated 15 December 2011 by a clinical psychologist, NC, at Greater Southern Health Service in which she says that the complainant’s “parents” recently disclosed that the complainant may have been sexually assaulted when she was five years old;
(d)a request to the Adolescent Mental Health Team at the Queanbeyan Hospital on 12 June 2013 for urgent review of the complainant by Dr ED, which stated that the complainant had ‘long standing issues with behaviour and mood, has had lots of counselling and medical review, initially following suspicion of sexual assault as an infant...’;
(e)an open referral letter dated 4 March 2014, from a clinical psychologist, DM, advising that ‘there was a developmental trauma for [the complainant], and our service identified this as a major trigger for her presenting problems’;
(f)a referral letter dated 19 November 2015 by a clinical nurse consultant at the Child and Adolescent Mental Health Assessment Team, Queanbeyan Mental Health Service stating that ‘[the complainant] has a past history of sexual abuse with allegations that it was the biological father, but no evidence has been found’; and
(g)a number of Mental Health Review notes from 2012 to 2014 noting the allegation that the complainant had been sexually abused when she was four or five years old.
After noting this material, Professor Thomson said:
Research has shown that therapeutic procedures have the potential to contribute to the reconstruction of memories. One of the most common errors in counselling and therapy is premature commitment to a particular diagnosis (Pope & Brown, 1996). Thus therapists who have an expectation that clients may have been sexually abused are likely to inquire about symptoms and facts consistent with sexual abuse. The expectations of the therapists may be because of their training, because the services they offer are to do with sexual abuse, and/or because their clients may have already brought up the possibility of abuse. The impact that only seeking information confirming a particular diagnosis has on what clients report is now well documented (Garb, 1998; Copeland & Snyder, 1995).
I advise that I am unable to provide a final opinion about the reliability of the account that the complainant has given in her police interview of January 2015 without access to the counselling and treatment records so that I can assess whether the questions asked, and the questions not asked, by the therapists and counsellors about the complainant’s symptoms are indicative of the therapists and counsellors having an expectation that the complainant was sexually abused by her biological father. These questions are likely to be significant in terms of assessing the complaint’s behaviour during the interviews and the circumstances in which she recalls having inappropriate sexual contact with her biological father.
In written submissions in support of the application, the applicant reiterated that the basis of the application was to provide Professor Thomson with any treatment or counselling notes that may assist him in forming an opinion as to the reliability of the complainant’s professed memory of being sexually abused by the applicant in 2004. In his written submissions, under the heading ‘The significance of access to the whole of the complainant’s medial records’, the applicant said:
The [applicant] has retained the services of Professor DM Thomson, an expert in relation to memory, especially childhood memory and developmental psychology, to provide expert advice and, if appropriate, expert evidence in relation to:
a) The complainant’s mental health and how her mental health issues may impact upon the reliability of any “memory” she professes to have of sexual acts as alleged against her natural father.
b) The impact which repeated counselling, questioning and examination over a period of years, some of which specifically addressed the issue of whether the complainant had been sexually assaulted, might have on those “memories”.
c) Whether the complainant[‘s] “memories” may have been prompted moulded, contaminated or induced by any of those matters in (a) or (b) above or by the encouragement of her mother or her stepfather.
Professor Thomson has watched all of the evidence-in-chief interviews (2 October 2004 and 22 January 2014) and has been provided with a large volume of medical and other source material. It is Professor Thomson’s expressed opinion that he cannot offer a final opinion about the reliability of the complainant’s memory and the matters which he has been asked to address without access to the counselling and treatment records to which reference has been made above.
On that basis, the application for leave was not opposed by the Crown and leave was granted by Murrell CJ. In granting leave, her Honour identified the legitimate forensic purpose for the applicant seeking access to the documents in the same terms as set out in the application, and as set out at [3] above.
Before proceeding any further, it is desirable to refer to the relevant provisions of the Act which are found in Division 4.2.5. Section 58 of the Act provides:
58 General 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 for 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.
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
The meaning of the term “protected confidence” is set out in s 55 of the Act, and encompasses considerably more than statements made to a counsellor by a client.
55 Meaning of protected confidence—div 4.2.5
(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
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(5) In this section:
sexual offence includes alleged sexual offence.
An application for leave, as permitted by s 58(2), must be in writing, set out the leave sought, and set out the applicant’s arguments in support of the application, including the legitimate forensic purpose for seeking the leave: s 59.
Section 60 then provides a “threshold test”:
60 Threshold test––legitimate forensic purpose
(1) The court must refuse the leave sought under section 59 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 in his or her 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 61.
If the court is satisfied that the applicant has established a legitimate forensic purpose for seeking the leave sought, the court must then conduct a preliminary examination of any protected confidence evidence to decide whether leave should be given: s 61(1). The preliminary examination must be conducted in the absence of the parties to the proceedings and their lawyers, except to the extent otherwise decided by the court: s 61(5). The court has, in an appropriate case, power to require anyone who has custody or control of a document to produce the document to the court for inspection, or to require certain people to give written answers to questions or attend the court for oral examination: s 61(2). In the present case, Murrell CJ gave leave for subpoenas to be issued to the individuals and entities who had provided treatment and counselling to the complainant, requiring them to produce the material to the court for inspection.
Murrell CJ directed that the preliminary examination of the protected confidence evidence, as required by s 61 of the Act, be conducted before me. This took place in chambers in the period between 19 October 2016 and 14 November 2016, in the absence of the parties as required by s 61(5). There was a considerable amount of material to examine, much of it is handwriting. The purpose of the preliminary examination is to determine whether any protected confidence should be disclosed to the parties. The granting of leave to disclose a protected confidence is governed by s 62 of the Act:
62 Giving 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 61 (Preliminary examination of protected confidence evidence), and may make the orders about the disclosure of the evidence it considers appropriate.
Logically, the first step in conducting a preliminary examination is to determine which documents contain protected confidences. There was no dispute that the material in respect of which the applicant sought leave contains protected confidences as defined by the Act: see s 55 of the Act. The next step is to apply the relevant test in s 62(1) to the protected confidence, in this case s 62(1)(b), taking into account those matters set out in s 62(3). Where the court gives leave for the disclosure of protected confidence evidence, it may, by virtue of s 63 of the Act, make ancillary orders to protect the person who made the protected confidence:
63 Ancillary orders for protection of person who made protected confidence
(1) The court may make the orders 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 40 (Sexual offence proceeding—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.
There are a limited number of reported decisions concerning these provisions of the Act. In the matter of an application by Donald FrancisMcInnes [2009] ACTSC 29; 194 A Crim R 377, Penfold J granted an application for protected confidences from counselling sessions of the complainant to be disclosed to the accused. In that matter the accused was alleged to have committed acts of indecency on a child in 1987. The complainant in that matter participated in counselling sessions commencing in mid-2006. From around that time the complainant also discussed the general subject matter of the alleged acts of indecency with her cousins, one of whom also made complaints of similar acts against the applicant. Her Honour accepted the applicant’s submission, unchallenged by the Crown, that the applicant had a legitimate forensic purpose for seeking leave to inspect the documents in order to ascertain if the complainant’s current recollection of the events of 1987 may have been tainted by her discussions with her cousins, and to determine the extent of her recollection of the alleged offences prior to the discussions with her cousins.
The matters which Penfold J accepted as establishing a legitimate forensic purpose for seeking leave to inspect the protected confidence evidence were relevant only to the complainant’s credibility and reliability.
In R v O’Rafferty [2016] ACTSC 141, the applicant sought leave to use a subpoena to the Queanbeyan Child and Adolescent Mental Health Service seeking documents concerning the complainant’s treatment for a bipolar disorder. The accused was charged with one count of engaging in sexual intercourse with the complainant without her consent. Refshauge J recognised that the material sought may include protected confidences for the purposes of s 55 of the Act. With regard to the requirement in s 60 of the Act, that leave sought under s 59 must be refused unless the court is satisfied that the applicant has established a legitimate forensic purpose for seeking the leave, his Honour said at [16]-[19]:
This test will not provide too high a threshold for parties who might seek the issue of such a subpoena, for it is, in reality, the test for the issue of any subpoena. It is, indeed, the answer to a claim that a subpoena be set aside. See, for example, R v Saleam (1989) 16 NSWLR 14 at 17.
The Miscellaneous Provisions Act then proceeds to make provisions for the court to inspect the documents and conduct, under s 61 of that Act, a preliminary examination of the documents produced before permitting the parties to have access to them. I do not need to explore these provisions, though they, too, have some curiosities.
In this case, the key witness for the Crown is the complainant who, it has been said, has a mental impairment which may be relevant to her reliability as a witness. The case is one of what is often called "a word on word case" or "an oath on oath case". There was no independent medical or forensic evidence that corroborated the complainant's evidence. The jury rejected the complainant's evidence in relation to one count in the earlier trial. It is, therefore said to be "on the cards" (Alister v The Queen (1983) 154 CLR 404 at 414) that the requested material will materially assist the accused in his defence.
The need to explore that issue for the purposes of the trial appears to me to be a legitimate forensic purpose. While not directly opposing the grant of leave, the Crown did submit that when the subpoena was returned, there will need to be a consideration further of this issue.
I note that the legitimate forensic purpose identified by Refshauge J was again one relevant only to the credibility or reliability of the complainant.
The final ACT case of which I am aware is R v Basham [2009] ACTSC 142, a decision of Gray J delivered on 23 October 2009. The applicant in that case was charged with engaging in sexual intercourse with the complainant without her consent in 1992. The complainant subsequently underwent psychological counselling before making a complaint to police in late 2004. The applicant apparently issued a subpoena in committal proceedings to obtain the notes of the counselling undertaken by the complainant, and these were produced. It appears that the applicant was granted access to the notes in the committal proceedings, despite the prohibition of this occurring found in s 57 of the Act. As I understand it, the application before Gray J was for leave to disclose protected confidences for use in the applicant’s trial. The applicant identified the ‘forensic importance to him of the counselling notes’ as including:
(a)whether light would be shed on the absence of an earlier complaint;
(b)whether recent counselling was itself the genesis of the allegations against the applicant; and
(c)whether there was a potential inconsistency in accounts given by the complainant as to where the sexual assault was alleged to have occurred.
Gray J was satisfied that there was an arguable case that the evidence in respect to which leave was sought would materially assist the applicant in his case in the proceedings. The counsellor who prepared the clinical notes was then required to attend court for oral examination, described by his Honour as a ‘preliminary examination under s 63 of the Act’. I take this to be an erroneous reference to a preliminary examination under s 61, as s 63 provides for the making of ancillary orders for the protection of persons who make protected confidences and not for preliminary examinations. The evidence of the counsellor, his Honour said ‘satisfy certain of the forensic issues that are of concern’ to the applicant, but ultimately he said ‘it was left to me to examine the counselling notes to see if there was a possibility of there being issues of inconsistency or issues on the topic of an earlier complaint’. Having examined the documents, his Honour refused the leave sought on the basis that he was not satisfied that the disclosure of the protected confidence was necessary for the accused to make a full defence, and that its disclosure could have a negative effect on the public interest in maintaining confidentiality disproportionate to the probative value of the evidence.
The legitimate forensic purposes identified by the applicants in the above cases were all expressed at a reasonably high level of abstraction. Whether that was the intention of those who framed the provisions is debateable. The provisions of Division 4.2.5 of the Act were inserted by the Evidence (Miscellaneous Provisions) Amendment Act 2003 (ACT).The Explanatory Statement accompanying the Bill which became the amending Act relevantly stated:
New section 58 provides that a court dealing with the proceeding may give leave, in accordance with this division, for a protected confidence to be disclosed in a trial, sentencing proceeding, appeal or review (criminal proceeding). Applications are restricted to the court hearing a proceeding to prevent an applicant seeking leave from another judge or court. The tests for an application require the judicial officer dealing with the proceeding to have knowledge of the matter.
New section 59 sets out the mechanism for applying for leave to disclose protected confidence evidence. A ‘threshold test’ must be met before the court is entitled to examine the contents of the protected confidence (new section 60). An application must identify a legitimate forensic purpose and must satisfy the court that there is an arguable case that disclosure would materially assist the accused’s defence. Counsel should identify expressly and with precision the legitimate forensic purpose for which he or she is seeking access to the documents. It is insufficient for an applicant to say merely that it may assist their case.
Once the threshold test is satisfied, new section 61 provides that the court is to conduct a preliminary examination. The preliminary examination is an inspection of the protected confidence by the court. The preliminary examination is to be conducted in the absence of the public, the jury and the parties and their legal representatives. The court may allow the parties and their legal representatives to be present, but the preference should be for the preliminary examination to be conducted in their absence.
No persons other than a person having custody or control of the protected confidence, a counsellor, a principal or another representative of any organisation concerned with the treatment of a complainant may be ordered to attend or produce for this examination. The court may direct production, request written answers to questions, or require oral evidence, if, in the opinion of the court, oral evidence will assist in the effective conduct of the preliminary examination. Evidence taken at a preliminary examination is not to be disclosed or made public. An appellate court is authorised to have disclosed to it the evidence heard at a preliminary examination, but only if leave is refused. Evidence may be disclosed to the parties to the proceedings or to their legal representatives where the court has determined that they may have access to that evidence for the purposes of this division. A record of the preliminary examination must be made but must not be made available for public access.
(Underlining added)
The expectation expressed in the Explanatory Statement that counsel would be required to ‘identify expressly and with precision the legitimate forensic purpose for which he or she is seeking access to the documents’ is likely to prove unrealistic in many cases, because in the absence of knowledge of the contents of the documents the party seeking access will usually have to express the asserted legitimate forensic purpose at a level of abstraction such as, for example, to test the credibility of the complainant by reference to prior inconsistent statements about the alleged offence. In the light of the vagueness of the language in the Explanatory Statement, this may well be all that was intended.
In the present case the applicant has expressed his forensic purpose with a commendable degree of particularity, but the fact that he has done so, and that Murrell CJ was satisfied that there was a legitimate forensic purpose, raises an issue for the conduct of the preliminary examination not considered in the previous cases to which I have referred.
To what extent does the legitimate forensic purpose identified by the applicant for the purposes of the threshold test in s 60 of the Act govern the process of the examination of the protected confidence evidence under s 61 to decide whether leave should be given? To express it another way, does s 61 act as a “gateway” provision which, being satisfied, has no further role to play in determining what material, if any, should be disclosed, or does it provide a yardstick for use in making that determination? This is, in reality, a question about relevance: does a document need to be relevant only to the identified legitimate forensic purpose for leave to be granted to disclose it?
No assistance in answering this question is received by considering the Explanatory Statement. The presentation speech of the then Attorney-General, Mr Stanhope, for the Bill is also of limited assistance. After referring to the main purpose of the Bill being to introduce “immunity” for counselling notes of sexual offence complainants, he went on to say:
A general immunity applies to a trial, sentencing or appeal. To disclose a protected confidence to the proceeding, the leave of the court must be sought.
There are three stages. For the first stage the party seeking leave must identify the legitimate forensic purpose and satisfy the court that the records would materially assist their case. Leave should be refused if the judge is not satisfied on these grounds. A grant of leave would begin the second stage, which is a preliminary examination by the judge of the protected confidence evidence. After conducting the preliminary examination, the third stage is the court granting leave for the disclosure of the protected confidence. This can only occur if the judge believes it to be in the public interest to disclose; in essence, that it will assist an accused person to have a fair trial. Balanced against disclosure is the public interest in preserving the confidentiality of protected confidence evidence.
As Refshauge J noted in R vWR (No 2) [2015] ACTSC 199, the legislative regime in the ACT dealing with protected confidences is similar to that in other states, but is not identical. As his Honour observed, each regime is slightly different and uses different language.
In South Australia (SA), there is a threshold test in s 67F(2) of the Evidence Act 1929
(SA) requiring a judge to be satisfied before granting leave to disclose a protected confidence that an application has a legitimate forensic purpose and that there is an arguable case that the evidence would materially assist the applicant in the presentation or furtherance of his or her case. Where that test is satisfied, the court then conducts a preliminary examination of the protected confidence material and may grant leave to adduce evidence of the material after weighing the public interest in preserving confidentiality with the public interest in preventing a miscarriage of justice that may arise from suppression of the evidence.
In Question of Law Resolved (No 1 of 2000) [2000] SASC 205; 77 SASR 344, Lander J considered these provisions before saying, at [66]:
If the Court is satisfied that it ought to make a preliminary examination then it must make the preliminary examination in accordance with the strictures in s 67F(4)(a) and may make the preliminary examination in the absence of the parties and their legal representatives. If it conducts the preliminary examination in the absence of the parties or the legal representatives the court can determine whether any of the evidence taken at the preliminary examination should be made available to the parties or their legal representatives. In carrying out the preliminary examination the court is given the powers by which it may compel counsellors or therapists to do any of the matters in s 67F(3). At the end of the preliminary examination the court must then decide whether it will give leave to adduce evidence of a protected communication and will do so only if it is satisfied that the public interest in preventing a miscarriage of justice which might arise from suppression of relevant evidence outweighs the public interest in preserving the confidentiality of protected communications. In arriving at the conclusion the court must have regard to the matter in s 67F(6). The Court is empowered to place conditions and limitations upon the evidence to be adduced.
I observe that Lander J refers in this passage to the public interest in preventing a miscarriage of justice which might arise from the suppression of relevant evidence, without qualifying the reference to “relevant evidence” by reference to the asserted legitimate forensic purpose.
The relevant legislation in New South Wales (NSW) is found in the Criminal Procedure Act 1986 (NSW) (the NSW Act). The NSW scheme is quite different from those in the ACT and SA, in that it does not provide for a threshold test. Section 298 of the NSW Act effectively prohibits seeking to compel a person to produce a document containing a protected confidence in criminal proceedings, production of such a document in criminal proceedings or adducing evidence of a protected confidence in criminal proceedings without the leave of the court. Before granting leave, s 299D requires the court to be satisfied that the document or evidence concerning the matters to which the protected confidence relates are not otherwise available and that the public interest in preserving the confidentiality of protected confidences and protecting the complainant from harm is substantially outweighed by the public interest in admitting into evidence information or the content of a document of substantial probative value.
The NSW Act permits a court to require a person to produce documents for the purpose of inspection by the court, so as to determine whether they contain protected confidences and, if so, to further determine whether they should be disclosed.
The substantial difference between the scheme found in the Act and the NSW Act make those cases addressing the NSW Act of limited use in deciding the present issue. It is noteworthy, however, that the NSW cases emphasise the necessity for the court to examine each document produced to determine whether it contains a protected confidence, and whether it should be disclosed: PPC v Williams [2013] NSWCCA 286; 238 A Crim R 25 at [69], ER v Khan [2015] NSWCCA 230 at [97].
In Victoria, the provisions of s 32C of the Evidence (Miscellaneous Provisions) Act 1958 (VIC) (The Victorian Act) are of the same effect as s 298 of the NSW Act. The Victorian Act does not provide for a threshold test such as is found in the ACT or the SA schemes. The provisions governing the grant of leave to require production, or adduce evidence, of a “confidential communication” are very similar to those found in the NSW Act.
In Western Australia, s 19C of the Evidence Act 1906 (WA) (the WA Act) provides that protected communications are not to be disclosed without the leave of the court. Section 19E of the WA Act states that an application for leave must be refused if there is no legitimate forensic purpose established for the leave sought. There do not appear to be any reported cases concerning the interpretation of the protected communication provisions of the WA Act.
As cases decided in other jurisdictions cast little light on the present issue, it must be determined on a process of construction of the relevant provisions of the Act. One of the purposes of the introduction of Division 4.2.5 of the Act was to restrict access by parties in criminal proceedings to protected confidences, and to restrict their use in sexual offence proceedings. This would argue in favour of a restrictive approach to interpretation of the relevant provision, consistent with the use of the identified legitimate forensic purpose as the yardstick for determining what documents containing protected confidences are relevant and to be subjected to the balancing exercise found in s 62. Such an approach is also attractive because the court will often not be aware of all of the issues in the criminal proceedings at the time it will be called upon to determine whether to grant leave, and without such a yardstick the court will be required to determine the relevance of documents utilising assumptions and inferences.
Despite these benefits of a restrictive approach, I have ultimately decided that it is not correct. The provisions of the Act concerning the giving of leave to disclose protected confidences, and in particular s 62, make no reference to a restriction based upon the legitimate forensic purpose identified for the purposes of the threshold test in s 60. 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].
The issues which I have addressed are not academic. If the legitimate forensic purpose of the applicant is to obtain protected confidence material concerning the nature of her treatment before she made her complaint in January 2015 for the purpose of obtaining a report from Professor Thomson about the possibility that the complainant’s asserted memory of an assault by the applicant is potentially a false memory, this could considerably narrow the category of documents that may be relevant. It may mean that documents, if any, relevant to whether the complainant has a memory of such an event, as opposed to a false memory, would be excluded, particularly if those documents record protected confidences made after her complaint. This could jeopardise the applicant’s ability to receive a fair trial by reducing his ability to test the evidence of the complainant.
In my opinion, s 60 of the Act is a gateway provision. Once the requirements of that section are satisfied, the identification of protected confidence material which may be subject to disclosure is based upon the application of the test in s 62 of the Act, taking into account those matters set out in s 62(3). In applying the test, the court must attempt to determine the potential importance of a document containing a protected confidence to the proceedings, determined by the court as best it can based upon the nature of the charges, the material before the court, and reasonable inference and assumptions. Material produced upon subpoena and not containing a protected confidence is not subject to the provisions of Division 4.2.5 of the Act and will, of course, be made available for inspection.
I infer from the material before me that the significant issue in the applicant’s trial will be whether the prosecution can establish to the standard of beyond reasonable doubt that the acts alleged against the applicant by the complainant, and which form the bases of the charges, actually occurred. The material before me suggests that the Crown case will depend almost entirely on the evidence of the complainant, although there may be circumstantial evidence led consistent with the assertion that she was the subject of sexual abuse when she was five years old, and that the applicant had the opportunity to commit the alleged offences. The evidence of the complainant as to these events and identifying the applicant as the person who abused her is crucial to the Crown case. The credibility and reliability of the complainant and her evidence is likely to be crucial at the applicant’s trial.
It was against this understanding of the Act and the issues likely to arise at the applicant’s trial that I conducted the preliminary examination of the documents produced under subpoena. Having identified documents containing protected confidences, I then determined whether the public interest in ensuring that the applicant receives a fair trial outweighs the public interest in preserving the confidentiality of the protected confidence, having regard to those matters set out in s 62(3) of the Act.
A record of the preliminary examination has been made, but in accordance with s 61(7) of the Act will not be made available for public access.
Those documents which are to be provided to the parties for inspection have been copied and separated from the documents produced under subpoena. They may now be inspected. To the extent that the documents contain protected confidences I give leave pursuant to s 62 of the Act for those protected confidences to be disclosed.
| I certify that the preceding forty-two [42] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 25 November 2016 |
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