R v O'Rafferty (No 2) - [2016] ACTSC 274

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 Re McInnis (2009) 194 A Crim R 377 R v O’Rafferty [2016] ACTSC 141 R v WR (No 2) [2009] ACTSC 110
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

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 (No 2)

Details

AGLC: R v O'Rafferty (No 2) [2016] ACTSC 274
Case: [2016] ACTSC 274
Decision Date: 22 August 2016

CaseChat Overview and Summary

The case of R v O'Rafferty (No 2) involved the appellant, O'Rafferty, who was facing criminal charges. The dispute centred around the disclosure of certain medical records that had been produced in response to a subpoena. The case was heard in the Supreme Court of the Australian Capital Territory. The primary concern was whether the documents, which contained sensitive personal information, could be disclosed to the parties involved in the proceedings without infringing upon the protected confidences and privacy rights of the individuals involved.

The legal issues before the court were whether the disclosure of the medical records to the parties was permissible under the Evidence (Miscellaneous Provisions) Act 1991 (ACT), specifically section 62, and if so, under what conditions. The court had to balance the public interest in ensuring a fair trial with the privacy rights of the individuals whose medical records were at issue. Additionally, the court considered whether the disclosure of these documents was necessary for the purposes of the proceedings and if there were any overriding public interest factors that should be taken into account.

The court found that the disclosure of the documents was necessary for the purposes of the proceedings and that the public interest in ensuring a fair trial outweighed the privacy rights of the individuals involved. The court held that the documents produced by Jeffrey Hardcastle of the Sawtell Medical Centre, Dr Patricia Collie, and the Queanbeyan Health Service could be disclosed to the parties under section 62 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). The court granted leave for the disclosure of the documents, ensuring that the process was conducted in a manner that protected the privacy of the individuals as much as possible while fulfilling the requirements of a fair trial.

The final orders of the court granted leave under section 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 involved in the proceedings. This decision was made in the interest of ensuring a fair trial for the appellant, O'Rafferty, while also taking into consideration the privacy rights of the individuals whose medical records were at issue.

Orders

Orders of the court

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.

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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