R v P No. DCCRM-02-627

R v BRP
[2003] SADC 160
CRIMINAL - RULING
Judge David Smith
Introduction

The accused is about to be tried for six sexual abuse offences against two female children.
By subpoena directed to the Women’s and Children’s Hospital, the accused seeks production to the Court of certain specified documents relating to the Therapeutic Counselling at the Hospital of three female children, two of whom it is alleged were the victims of the alleged offences and the third of whom it is alleged witnessed two of the offences but who also is alleged to be the victim of two further sexual offences at the hands of the accused.
The Women’s and Children’s Hospital have attended by counsel in answer to the subpoena and seek orders from the Court that insofar as the subpoena is unanswered there is an appropriate claim for the statutory Public Interest Immunity privilege conferred by s67E of the Evidence Act 1929 (as amended) (“the said Act”), and that the documents are thereby protected from disclosure.
I heard argument as to this matter on the 10^th November 2003 and gave my ruling dismissing the application on the following day. I now publish the reasons for my ruling.
Background circumstances
On the 10^th November 2003 the accused pleaded not guilty in this Court to six counts of unlawful sexual intercourse with a person under the age of 12 years contrary to s49(1) of the Criminal Law Consolidation Act 1935.
The particulars of the offending are as follows:
·between 1.1.99 and 31.12.01 at Elizabeth Park he inserted his finger into the vagina of DJB a person under the age of 12 years (Count 2);
·between 1.1.99 and 31.12.01 at Elizabeth Park he caused KLO a person under the age of 12 years to perform an act of fellatio upon him (Count 3);
·between 1.1.99 and 22.12.01 at Elizabeth South he inserted his finger into the vagina of DJB a person under the age of 12 years (Count 4);
·between 1.1.99 and 22.12.01 at Elizabeth South he caused KLO a person under the age of 12 years to perform an act of fellatio upon him (Count 5);
·between 1.1.99 and 22.12.01 at Elizabeth South he performed cunnilingus upon DJB a person under the age of 12 years (Count 6);
·between 1.1.99 and 22.12.01 at Elizabeth Park he inserted his finger into the vagina of DJB a person under the age of 12 years (Count 7).
The alleged victims of the above offences were DJB who was born on the 10^thApril 1994 and KLO who was born on the 26^th May 1992. It is alleged by the Crown that two of the offences against KLO were witnessed by ANB. ANB was born on the 25^th November 1991.
The relevant indictment is the Ex Officio Information of the 27^thFebruary 2003 which charges the accused with 10 offences. On the 24^th March 2003 in this Court Judge Bishop ordered that Counts 1 and 10 be tried separately, that Counts 2 to 7 be tried separately and finally that Counts 8 and 9 be tried separately. The trial of Counts 1 and 10 which alleged offences against KLO has already taken place and has resulted in the accused being acquitted on the 24^th September 2003. Counts 8 and 9 allege offences by the accused against ANB. Those counts are yet to be listed for trial.
As indicated all three children have had therapeutic counselling at the Women’s and Children’s Hospital.
By subpoena, dated the 29^th October 2003 directed to Dr Terry Donald of the Women’s and Children’s Hospital, the accused seeks production to the Court of the following documents:
“B.    Produce to the Court the following documents:
1.     The videotapes, recording the interviews between Child Protection Services and KLO date of birth 26 May 1992, on 3 June 1997, 8 July 1997 and 9 July 1997.
2.     All videotapes, reports, notes and letters prepared by Child Protection Services concerning KLO (dob 26 May 1992), DJB (dob 10 April 1994) and ANB (dob 25 November 1991) since 21 December 2001, including but not limited to therapeutic counseling (sic) sessions.”
Some parameters
First of all, it is clear in this case and accepted that the documents sought are communications made in a therapeutic context relating to alleged victims of sexual offences (see s67D). Accordingly, these communications are protected from disclosure in these proceedings by Public Interest Immunity (see s67E(1)).
If there had been no such acceptance then the Hospital would have had to establish, either by oral or affidavit evidence, that the documents and materials sought were protected from disclosure. If there was still a dispute about the real character of the materials the Court could inspect the materials for that purpose but only for that purpose (see Question of Law Reserved (No. 1 of 2000) (2000) 77 SASR 344 per Lander J at 360).
Further, protected communications are not liable to be discovered, inspected or produced in answer to a subpoena (see s67F(1); see also Question of Law Reserved (No. 1 of 2000) (supra) per Lander J at 358, 359). However, evidence of a protected communication can be adduced in legal proceedings (other than a committal hearing) if the court grants leave to do so (see 67F(1) and (2)). In deciding whether to grant leave, the Court is required to balance “the public interest in preserving the confidentiality of protected communications against the public interest in preventing a miscarriage of justice that might arise from the suppression of relevant evidence” (see s67F(5)). In exercising this discretion the Court is obliged to have regard to the following five considerations:
“(a)the need to encourage victims of sexual offences to seek psychiatric or psychological therapy and the extent to which the effectiveness of such therapy is dependent on the maintenance of confidentiality between the counsellor or therapist and the victim;
(b)the probative value of the evidence and whether its exclusion may lead to a miscarriage of justice;
(c)the attitude of the victim or alleged victim to whom the communication relates (or the guardian of the victim or alleged victim) to the admission of the evidence;
(d)whether admission of the evidence is being sought on the basis of a discriminatory belief or bias;
(e)the extent to which admission of the evidence would infringe a reasonable expectation of privacy and the potential prejudice to any person who would otherwise be protected by public interest immunity.”
(see s67F(6)(a) to (e))
So leave can only be granted if the Court having addressed the above considerations is satisfied that the public interest in preserving the confidentiality of protected communications is outweighed by the public interest in preventing a miscarriage of justice (see s67F(7)). An applicant for leave bears the onus of convincing the court that the public interest in preventing a miscarriage of justice prevails.
Clearly the legislators envisaged that there maybe clear-cut cases where the Court could properly exercise the discretion to grant leave without seeing or examining the “protected communications”. For the case which is not clear-cut, the legislation provides a mechanism whereby the Court can, prior to deciding whether or not to grant leave, “make a preliminary examination of the relevant evidence”. Pursuant to s67F(2) upon an application for leave the Judge may make a preliminary examination of the relevant evidence; subject to two pre-conditions, namely:
“(a)the applicant has a legitimate forensic purpose for seeking leave to adduce the evidence; and
(b)there is an arguable case that the evidence would materially assist the applicant in the presentation or furtherance of his or her case.”
(see s67F(2)(a) and (b))
So if the applicant for leave cannot put the Court in the position of being able, without an examination of the relevant evidence, to address the considerations in s67F(5) and (6), the Judge may make a preliminary examination of the relevant evidence but only if satisfied of the threshold requirements in (a) and (b) of s67F(2). Again the applicant bears the onus of satisfying the Judge of both these threshold requirements.
It is clearly no accident that from s67F onward in this code the legislation employs the phrase “relevant evidence” as opposed to the wider “protected communication”. Clearly what is envisaged is that there be identified from the protected communication the “relevant evidence” in order to enliven what will often be dual discretions on the route to granting leave, namely the discretion to conduct the preliminary examination and then the discretion to grant leave.
Finally, I refer to the exhaustive summary and explanation of the legislation as set out by Lander J at 358, 359, 360 in Question of Law Reserved (No 1. of 2000) (supra).
Arguments
Counsel for the Hospital, Ms Olsson, argued that the documents sought are protected from disclosure and that there are no grounds made out that would justify the Court examining the communications as a prelude to granting the accused leave to adduce evidence from them (see ss67D, 67E, 67F of the said Act). Whilst accepting that the documents are a protected communication, counsel for the accused, Mr Kane, contended that the Court itself should require production of the said documents and make a preliminary examination of them with a view to deciding to grant the accused leave to adduce evidence of the protected communication.
Mr Kane conceded that he was not aware of the contents of the protected communications. He submitted that in this case there were opportunities and indeed suggestions that the three children might have collaborated and concocted allegations against his client. He explained and indeed it was clear from the papers that the accused was the partner of NO, the mother of KLO. The child DJB is the daughter of ASH, who is the sister of NO. So KLO and DJB are cousins. ANB is a friend of both. It is further accepted that all three children have had contact with one another in the time since the alleged offending. Mr Kane pointed out a range of inconsistencies in the declarations generally and statements by the three children which might be explained by collaboration between them and consequential concoction. He suggested that the Hospital documents might reveal this.
Conclusions
Clearly the genesis of the Therapeutic Counselling at the Women’s and Children’s Hospital was the allegations made by these three children against the accused. So I can accept that it is likely there will be material in the protected communications which could be characterised as “relevant evidence” but only in the broad sense that some of it will “have to do with” the allegations of sexual impropriety against the accused.
Mr Kane effectively accepted that I could not proceed immediately to decide whether I could grant leave to adduce evidence of the protected communications. Rather, he contended that I should “make a preliminary examination of the relevant evidence” (s67F(2)). In making such an application, he necessarily undertook the onus of establishing to my satisfaction that firstly, the accused had a legitimate forensic purpose for seeking leave to adduce the evidence and secondly, that there was an arguable case that it would materially assist his case.
In my view, neither of the two pre-conditions have been established to my satisfaction.
As to the first, namely whether there was a legitimate forensic purpose for seeking leave to adduce the evidence, Mr Kane contended that the protected communications may disclose information confirming concoction and collaboration and further may also show inconsistency. Such material if it existed would impact on the credit of the complainants. In Friedand Others v National Australia Bank Ltd and Others (2000) 175 ALR 194 at 199, Weinberg J doubted that there was a legitimate forensic purpose in issuing a subpoena directed to a third party for the purposes of uncovering material to impeach the credit of a witness. He acknowledged and referred to the authorities both ways (see Fried at 199, 200). Mr Kane was not able to identify any such material other than to suggest that it might emerge from a preliminary examination by the Court and might thereby pave the way to a grant of leave.
It must be accepted that the applicant who seeks a document which will impeach the credit of a witness arraigned against him or her has a legitimate forensic purpose in seeking the document. However, in this case, it has not been established that any of the protected communications would facilitate that purpose. The accused merely wants the matter investigated on the basis that there are some indications that it might be fruitful. Such trawling does not constitute “having a legitimate forensic purpose”.
Further, I am not satisfied as to the second pre-condition. In particular, counsel, Mr Kane, has been unable to satisfy me that “there is an arguable case that the evidence would materially assist the accused in the presentation of his case”. Indeed because the accused does not know what is in the materials he is unable to identify “the evidence” which would assist his case. Rather, it is plain that the defence wish to examine this information in order to ascertain whether there is any evidence of supporting the accused’s case of collaboration. There is no identification of any specific material or evidence. The same problem confronted the applicants in the case of Liddy. Nyland J said in R v Liddy (No. 3) [2001] SASC 151:
“... it will be necessary to identify the material sought to be led. The accused will also need to satisfy me that he has a legitimate forensic purpose for so doing and that the information contained therein will materially assist him in the presentation or furtherance of his case. My present view is that the mere fact of two complainants having seen the same counsellor shortly before the committal is insufficient to satisfy the provisions of s 67F(2)(a) and (b). At present, there is no evidence of contact between the complainants at any counselling session and Mr Tully would be precluded by professional ethics from disclosing what either of them had said to him. It does not follow as a matter of course that there has been any contamination of their evidence as a result of the coincidence of the counsellor. To take advantage of s 67F, the accused is obliged to show a legitimate forensic purpose and to identify matters which are both material and relevant to the conduct of his defence as opposed to conducting an investigation into matters which might be of assistance to him. It is obviously difficult for the accused to establish that matter without access to the files but that difficulty must have been in the minds of the legislators when drafting this particular section.”
(the italics are mine)
In Question of Law Reserved (No. 1 of 2000) Lander J at 359 and 360 said of the same problem:
“Of course in criminal proceedings an accused person will not ordinarily be aware of the communication or the evidence of that communication. It would be a relatively rare circumstance where an accused person was able to establish that there was a communication, the terms of the communication and the evidence of that communication.
It was put in those circumstances that some accused persons could go to trial without knowing that there were communications available which would qualify to be adduced as evidence under s 67F. I think that is right. I think that the scheme of the Act will preclude some accused persons from ever becoming aware of protected communications which might be relevant to the accused’s defence. But that, in my opinion, is the clear intent of the legislation.
It was submitted that the possible injustice to an accused person could be alleviated by allowing an accused person to subpoena the relevant institution’s file and on the return of that subpoena allow the accused’s counsel to inspect the protected communication for the purpose of deciding whether an application could be made under s 67F(2). It was submitted that such a procedure would alleviate the risk of a miscarriage of justice.
In my opinion to allow such a procedure would be contrary to the clear purpose and provisions of the legislation.
If a party was entitled to inspect the evidence of the protected communication to decide whether an application should be made to adduce that evidence the very privilege that the legislation gives would be lost.”
This code effectively sets up an impenetrable barrier against any fishing expedition. There are clearly good policy reasons for doing so.
Final ruling
Accordingly, for the above reasons I ruled on the 11^th November 2003, that there was a proper claim for the statutory privilege, namely Public Interest Immunity, conferred by s67E of the Evidence Act. I confirm that I refused the application by the accused for leave to adduce evidence from the protected communications. In particular, I confirm that I declined to require production of the documents sought by the subpoena for the purpose of conducting a preliminary examination of the relevant evidence.
So to the extent that this was a pre-trial application for the production of the Hospital records it stand dismissed and to the extent that it is necessary, the subpoena is set aside.

[2003] SADC 160

17 November 2003