R v O'Rafferty - [2016] ACTSC 141

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 Div 4.2A
Cases Cited:	Alister v The Queen (1983) 154 CLR 404 KS v Veitch (No 2) (2012) 273 FLR 1 O'Rafferty v The Queen [2016] ACTCA 13 Re an Application by McInnes (2009) 194 A Crim R 377 R v Joyce (2002) 173 FLR 322 R v Saleam (1989) 16 NSWLR 14 R v WR (No 2) [2009] ACTSC 110
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v O'Rafferty

Details

AGLC: R v O'Rafferty [2016] ACTSC 141
Case: [2016] ACTSC 141
Decision Date: 16 June 2016

CaseChat Overview and Summary

The case of R v O'Rafferty involved a defendant who applied for leave to issue a subpoena to the Queanbeyan Child and Mental Health Services, seeking the production of specific documents. The application was made in the context of a criminal trial. The primary legal issue the court had to address was whether the application for leave to disclose a protected confidence required a written application, as per the relevant legislation.

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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