R v O'Rafferty (No 2)
[2016] ACTSC 274
•22 August 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v O’Rafferty (No 2) |
Citation: | [2016] ACTSC 274 |
Hearing Date: | 17 August 2016 |
DecisionDate: | 22 August 2016 |
Before: | Refshauge J |
Decision: | Leave is granted under s 62 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) for the documents produced by Jeffrey Hardcastle of the Sawtell Medical Centre, Dr Patricia Collie and the Queanbeyan Health Service to be disclosed to the parties in and for the purposes of these proceedings. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Fair trial – protected confidences – privacy protection – material produced in response to subpoena – medical records – examination of documentation – disclosure for the purposes of proceedings – public interest – s 62 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) |
Legislation Cited: | Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 55, 58(3)(b), 59, 62, s 62(3), 62(3)(a), 62(3)(b), 62(3)(c), 62(3)(d), 62(3)(e), 62(3)(f), 62(3)(g), 62(3)(h), Div 4.5 Court Procedures Rules 2006 (ACT), r 6605(3) |
Cases Cited: | O’Rafferty v The Queen [2016] ACTCA 13 |
Parties: | The Queen (Crown) Kevin Henry O’Rafferty (Defendant) |
Representation: | Counsel Ms M Moss (Crown) Mr J Stewart (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aboriginal Legal Service (Defendant) | |
File Number: | SCC 148 of 2012 |
REFSHAUGE J:
On 12 September 2016, the accused, Kevin Henry O’Rafferty, is to stand trial on one count of engaging in sexual intercourse with the complainant without her consent.
This is the second trial of this count; the prior proceedings are set out in O’Rafferty v The Queen [2016] ACTCA 13 at [1]-[4]. I do not need to repeat what was there said.
The complainant will be the key witness in the trial and her credibility and reliability as a witness will be important, if not critical, issues for the jury. The complainant is said to have a mental impairment which, it is submitted on behalf of Mr O’Rafferty, to be an important matter of which the jury should be aware in order to assess her reliability.
As a result, Mr O’Rafferty’s legal representatives have sought access to certain material for the purpose of the trial. Some of this material is what are known as protected confidences within the meaning of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). That Act establishes a particular regime for restricting access to such material.
A protected confidence is defined in s 55 of the Evidence (Miscellaneous Provisions) Act to mean:
a counselling communication made by, to or about a person against whom a sexual offence was or is alleged to have been committed.
That section gives a very wide meaning to “counselling communication” and the circumstances under which it is a protected confidence as follows:
(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.
(emphasis in original)
The regime established in relation to protected confidences in the Evidence (Miscellaneous Provisions) Act has been usefully summarised by Penfold J in Re McInnis (2009) 194 A Crim R 377 at 378-9; [6] as follows.
· Except with the leave of the court, evidence of protected confidences cannot be obtained for the purposes of or disclosed in a criminal proceeding and is not admissible in a criminal proceeding (s 58).
· Leave may be sought by application under s 59 and must be refused if the court is not satisfied the applicant has a legitimate forensic purpose for seeking the leave (s 60). The court must decide the question of legitimate forensic purpose before it examines the protected confidence as material (s 60(3)).
· If a legitimate forensic purpose is established the court must then examine the protected confidences material. The purpose of that preliminary examination of a court may require the documents to be produced and require certain people to give written or oral evidence to the court (s 61).
· Under s 61(5), that preliminary examination must be made in the absence of the public and any jury and must also be made in the absence of the parties and their lawyers except to the extent otherwise decided by the court.
· A record is to be made of the preliminary examination but that record is not to be made available for public access (s 61(7)).
· Having examined the protected confidence material the court must then decide the application for leave having regard, amongst other things, to various criteria set out in s 62.
As I pointed out in the R v WR (No 2) [2009] ACTSC 110 at [30]-[32], the regime prohibits disclosure of protected confidences to even the Court unless leave has been given to have the protected confidences produced, such leave having been granted under s 59 of the Evidence (Miscellaneous Provisions) Act. Thus, no subpoena may be issued for such material without leave of the Court.
This can cause some practical difficulties, for it is not the function of the Court registry, which has the responsibility of issuing subpoenas, to be able to determine whether a subpoena would require the production of protected confidences. The protection for the process perhaps comes in the requirement under r 6605(3) of the Court Procedures Rules 2006 (ACT) for a copy of the subpoena to be served on each other party by the party at whose request the subpoena has been issued. In the case of a subpoena issued at the instance of the accused, the Director of Public Prosecutions will represent the Crown as the other party and should be vigilant to ensure that a subpoena has not been issued inadvertently or otherwise in contravention of the relevant provisions.
In this case, very properly, the legal representatives of Mr O’Rafferty sought leave to have the relevant subpoenas issued. See R v O’Rafferty [2016] ACTSC 141.
I explained the legitimate forensic purpose in R v O’Rafferty at [18]-[19], as follows:
18.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.
19.The need to explore that issue for the purposes of the trial appears to me to be a legitimate forensic purpose.
Material was produced in response to the subpoena. Some limited orders for access were made on 11 August 2016, but they did not seem to comply with the provisions of the Evidence (Miscellaneous Provisions) Act and I have been asked to consider the position.
Documents were produced from:
· Jeffrey Hardcastle of the Sawtell Medical Centre, Sawtell New South Wales;
· Dr Patricia Collie, General Practitioner, Sawtell New South Wales;
· Queanbeyan Health Service.
I have inspected each of these documents. Given the width of the definition of “protected confidence”, I am satisfied that each of the documents that have been produced is a protected confidence.
I am, therefore, required to conduct an examination of the documentation. That examination is to be conducted in the absence of anyone else, unless I consider that the parties or their lawyers should be present and to what extent.
In this case, part of the material was made available apparently to Mr O’Rafferty by Robinson AJ on an undertaking that there be no discussion with anyone about the contents of the documents other than with the Crown Prosecutor. Although the order recorded was that the documents were to be made available to “the Defendant”, it appears to me that the intention, though not adequately expressed, was that Mr O’Rafferty’s counsel was the person to whom the documents were to be disclosed and from whom the undertaking was taken, not Mr O’Rafferty himself. Mr O’Rafferty’s counsel properly accepted that this was the intention of the order and had complied with that understanding.
While I am not convinced that this was permitted by the Evidence (Miscellaneous Provisions) Act, it did enable me to hear submissions from Mr O’Rafferty’s counsel on the issue I have to determine in making the required preliminary examination.
I have now conducted the required preliminary examination of the material. It is, then appropriate to consider whether leave for disclosure should be granted. That should be done having regard to the criteria set out in s 62(3) of the Evidence (Miscellaneous Provisions) Act which I now do.
Is disclosure necessary or the accused person’s defence? (s 62(3)(a))
In this case, the protected confidences may reasonably be relevant to a complainant’s reliability of her perception at the time of the alleged offences and as to her recollection of them. As the Crown case will turn very substantially on the complainant’s evidence, Mr O’Rafferty is likely to be required to challenge the reliability of that evidence of the complainant in order to defend the charge.
Public interest in effective counselling etc for victims. (s 62(3)(b))
This is a very important consideration; indeed, it may well be the prime justification for the whole regime. Hence, the Evidence (Miscellaneous Provisions) Act makes the regime for permitting disclosure so rigorous. There were, however, no submissions to me suggesting that the current circumstances are such that the disclosure of the materials might have any realistic negative effect on the provision of effective counselling to other victims of sexual offences. Indeed, the nature of the counselling as shown in the protected confidences here does not suggest that this may be the outcome.
Might disclosure of protected confidences dissuade victims from or diminish value of counselling etc? (s 62(3)(c))
This criterion raises issues similar to the previous one. Disclosure has not been the subject of objection by any of the agencies producing the material. That, of course, is far from determinative, but is relevant. I am satisfied that, having regard to the nature of the material, it is unlikely that the disclosure in this case will either dissuade victims from seeking counselling or diminish the value of such counselling.
Probative value of evidence and availability of other relevant evidence. (s 62(3)(d))
The direct probative value of the protected confidences will be of some significance but it is difficult to identify that with precision without having regard to the other evidence to be adduced to which I was not privy. Nevertheless, it is likely that the protected confidences will provide a reasonable basis for challenging the perception of the complainant and the reliability of her recollection.
It has the capacity to be probative evidence.
I was not taken to any other relevant evidence that may be available and which would render the access to the protected confidences irrelevant.
Likelihood that disclosure will affect outcome of case. (s 62(3)(e))
If the use of the protected confidences in cross-examination does undermine or reduce the credibility or reliability of the complainant as suggested, then it has a real capacity to affect the outcome of the case, for the Crown case depends very largely on the evidence of the complainant.
Where the disclosure is sought on the basis of a discriminatory belief or bias. (s 62(3)(f))
While the trial judge will have to take care to ensure that the cross-examination of the complainant and the submissions to the jury do no suggest that merely being mentally impaired denies the complainant’s evidence credibility or reliability, I have not heard any suggestion that there is any basis of a discriminatory belief or bias in the motivation for Mr O’Rafferty’s application for disclosure.
Does the maker or recipient of the confidence object to disclosure? (s 62(3)(g))
There was no material before me to show that either the maker of the protected confidence, namely the complainant, nor the recipient, namely the addressee of the various subpoenas, objected to the disclosure.
Expectation of confidentiality or potential prejudice to privacy including having regard to passage of time or other event. (s 62(3)(h))
The protected confidences do traverse matters that go somewhat beyond the alleged mental impairment of the complainant but are, nevertheless, relevant to her mental state.
There is otherwise nothing to suggest that there is a prejudice to privacy, other than the inevitable fact that disclosure does reduce privacy protection, to suggest that the material should not be disclosed.
Conclusion
I am satisfied that, in the circumstances of this case, the public interest in ensuring that Mr O’Rafferty is given a fair trial outweighs the public interest in preserving the confidentiality of the protected confidences.
I rely on the stated forensic purpose, my private examination and the fact that the addressees of the subpoenas have not objected to production.
Accordingly, I will grant leave under s 62 of the Evidence (Miscellaneous Provisions) Act for the disclosure of the protected confidences produced by the persons referred to above (at [13]), including the material marked as MFI 2.
I note that this decision does not determine the admissibility of any of the material in the trial. It is only a decision that Div 4.5 of the Evidence (Miscellaneous Provisions) Act does not prevent the disclosure in, or for the purposes of, the current criminal proceedings against Mr O’Rafferty of the protected confidences. In the absence of such leave the material would not be admissible in evidence of the trial (see s 58(3)(b) of that Act, but the grant of leave does not mean that the material will necessarily be admissible or admitted
| I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 20 September 2016 |
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