SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v O’Rafferty |
Citation: | [2016] ACTSC 141 |
Hearing Date: | 15 June 2016 |
DecisionDate: | 16 June 2016 |
Before: | Refshauge J |
Decision: | Kevin Henry O’Rafferty have leave to issue a subpoena to the Queanbeyan Child and Mental Health Services requiring production of the documents set out in the schedule to the subpoena received on the application, to be returnable on 6 July at 9.15 am |
Catchwords: | EVIDENCE – JURISDICTION, PRACTICE AND PROCEDURE – Subpoena – application for leave to disclose protected confidence – written application required – evidence in criminal trial |
Legislation Cited: | Court Procedures Act2004 (ACT), s 5A Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 40V, 55, 58, 58(3)(b), 59, 60, 61, Div 4.2.2B |
Cases Cited: | Alister v The Queen (1983) 154 CLR 404 |
Texts Cited: | M Jones and A Crocker, Responding to Sexual Assault: The Challenge of Change (ACT, Canberra, 2005) |
Parties: | The Queen (Crown) Kevin Henry O’Rafferty (Defendant) |
Representation: | Counsel Ms M Moss (Crown) Mr D Rutherford (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aboriginal Legal Service (Defendant) | |
File Number: | SCC 148 of 2012 |
REFSHAUGE J:
The accused, Kevin Henry O'Rafferty, is to stand trial to commence on 12 September 2016, on one count of engaging in sexual intercourse with the complainant without her consent.
The proceedings have a lengthy history, which it is not necessary to recount for the purpose of these reasons. The prior proceedings are summarised by Burns J in O'Rafferty v The Queen [2016] ACTCA 13 at [1]-[4]. It is sufficient to say that a first trial was held where Mr O'Rafferty was convicted of one count of sexual intercourse with the complainant without her consent and acquitted of the other. An appeal against conviction was upheld but, ultimately, a new trial was ordered. The new trial contemplated by the court is that which Mr O'Rafferty will face in September.
Application has now been made for leave to issue a subpoena addressed to the Proper Officer - Medical Records at Queanbeyan CAMHS, which I understand to be the Queanbeyan Child and Mental Health Services.
The subpoena seeks:
All documents including, but not limited to, attendance notes, treatment notes, treatment plans (including a GP Mental Health Treatment Plan) and referrals for [the complainant] as relate to the diagnosis, symptoms and medication of bipolar disorder for the period March 2012 - July 2013 inclusive.
This material, if in the possession, custody or control of the addressee, could well contain what is called in s 55 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the Miscellaneous Provisions Act), a "protected confidence". These are communications by a person against whom the sexual offence was, or…
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- AGLC
- R v O'Rafferty [2016] ACTSC 141
- Case
- [2016] ACTSC 141
- Decision Date
CaseChat Overview and Summary
The court considered the statutory provisions and the precedent set in previous cases regarding the disclosure of protected confidences. It was noted that the applicable law required a written application for such disclosures, and this was a condition that had not been met in the present application. The court emphasised the importance of following legislative requirements to protect the privacy and confidentiality of sensitive information. Given this, the court concluded that the application did not comply with the necessary legal procedures, and therefore, the leave to issue the subpoena could not be granted.
Ultimately, the court denied the application for leave to disclose the protected confidences. The court did not grant the defendant permission to issue the subpoena to the Queanbeyan Child and Mental Health Services for the specified documents. The final orders of the court were that Kevin Henry O’Rafferty did not have leave to issue the subpoena as requested.
Orders
Orders of the court
Kevin Henry O’Rafferty have leave to issue a subpoena to the Queanbeyan Child and Mental Health Services requiring production of the documents set out in the schedule to the subpoena received on the application, to be returnable on 6 July at 9.15 am
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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