R v QX (No 3)
[2021] ACTSC 245
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v QX (No 3) |
Citation: | [2021] ACTSC 245 |
Hearing Date: | 18 December 2020 |
DecisionDate: | 28 September 2021 |
Before: | Loukas-Karlsson J |
Decision: | See [55] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – subpoenas – subpoena issued by accused – prosecution application to set aside subpoena – protected confidence – s 126B of the Evidence Act 2011 (ACT) – s 131A of the Evidence Act 2011 (ACT) – whether legitimate forensic purpose – whether fishing expedition – whether nature and extent of harm of allowing subpoena outweighs the desirability of evidence being presented |
Legislation Cited: | Court Procedure Rules 2006 (ACT) rr 6604, 6609 Crimes Act 1900 (ACT) ss 55, 61, 66 Evidence (Miscellaneous Provisions) Act 1991 (ACT) div 4.4.3, s 79A |
Cases Cited: | Alister v The Queen (1984) 154 CLR 404 Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667 Waind v Hill and National Employers’ Mutual General Association [1978] 1 NSWLR 372 |
Texts Cited: | Association of American Physicians and Surgeons, ‘Amicus Curiae Brief of the Association of American Physicians and Surgeons in Support of the Respondent-Appellant Abbas T.Zadeh, In Support of Reversal’, submission in United States v Zadeh (5th Cir, No 15-10195) 13 July 2015 Australian Medical Association, ‘Ethical Guidelines for Disclosing Medical Records to Third Parties 2010 (revised 2015)’ Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 16th ed, 2021) |
Parties: | The Queen (Crown) QX (Accused) |
Representation: | Counsel S Jerome ( Crown) J Pappas ( Accused) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Aulich Criminal Law (Accused) | |
File Number: | SCC 58 of 2020 |
LOUKAS-KARLSSON J:
Introduction
QX (the accused) initially filed a subpoena to produce documents addressed to The Proper Officer of ACT Health – the Canberra Hospital (the subpoena). The prosecution filed an application in proceeding dated 25 May 2020 seeking to have the subpoena set aside. The accused filed a reissued subpoena to the Canberra Hospital revising the schedule to include the correct relevant provisions of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMP Act). The prosecution’s application continued to apply to the reissued subpoena.
This application and multiple other applications in this matter were heard on 19 August 2020, 2 November 2020, and 18 December 2020. On 18 December 2020, the parties indicated they wished for this discrete application to be determined on the papers. On that date, I reserved my decision in respect of the application. Reasons now follow.
Background of Matter
On 30 October 2020, the prosecution filed a fresh indictment in this matter after a stay application advanced by the accused was refused on 19 August 2020: R v QX [2021] ACTSC 187. The indictment against the accused contains the following offences:
(a) 18 counts of sexual intercourse with a person between the age of 10 and 16 years, contrary to s 55(2) of the Crimes Act 1900 (ACT) (Crimes Act) (Count 2-11, 13-20);
(b) One count of committing an act of indecency on a young person between the ages of 10 and 16 years, contrary to s 61(2) of the Crimes Act (Count 1); and
(c) One count of grooming a young person by engaging in conduct with another person who has a relationship with the young person with the intention of making it more likely that the young person would take part in an act of a sexual nature, contrary to s 66(1)(c) of the Crimes Act (Count 12).
The charges of sexual intercourse with a person between the age of 10 and 16 years and the charge of committing an act of indecency on a person between the ages of 10 and 16 years all relate to the same complainant, BM. The charge of grooming a young person through a third-party relationship has been particularised as the accused communicating with the complainant’s mother (GM) to persuade her that he was a good influence on the complainant and that time spent with him would help the complainant mature. This included the accused arranging with GM for the complainant to be dropped off at this residence for a movie night.
The prosecution’s case is that the accused engaged in various frequent sexual intercourse with the complainant, who was between 14 and 15 years at the time, for an eleven month period whilst she lived with his family and up until the police were alerted an commenced an investigation on 19 June 2019.
The Subpoena
The reissued subpoena filed by the accused contained the following schedule:
The documents and things you must produce are as follows:
1. A copy of all medical records (whether in manuscript, typed or electronic form) relating to the presentation, attendance, or admissions to the Canberra hospital by [BM] on 12 July 2019.
2. A copy of all medical records (whether manuscript, typed or in electronic form) relating to the mental health of [BM] or the treatment or counselling of her in relation to her mental health, dated 12 July 2019; including but not limited to any clinical notes, results or psychometric testing, results of any psychological or psychiatric analysis, psychiatric or psychological reports or opinions, referrals to other medical practitioners, referrals to mental health facilities and records of prescriptions for medication for any mental health condition or illness; but excluding material that is or contains a “protected confidence”, as defined in s 79A of the Evidence (Miscellaneous Provisions) Act 1991 (ACT).
(emphasis added)
The subpoena had a return date of 18 June 2020. The addressee of the subpoena, the Canberra Hospital, did not object to the subpoena and produced the material to the Court.
The accused issued the subpoena to the Canberra Hospital as material disclosed in the prosecution brief indicates that the complainant attended the Canberra Hospital on 12 July 2019, shortly after making her initial complaints to police. The complainant participated in a series of eight evidence in chief interviews with police which occurred between late June 2019 through to April 2020. The accused understood that the attendance by the complainant at the Canberra Hospital was at the time the complaints were being made to police and that the attendance was related to an issue of self-harm.
Application to Set Aside
The prosecution seeks an order pursuant to r 6604 of the Court Procedure Rules 2006 (ACT) (Court Procedure Rules) to have the subpoena set aside completely. The application is made on the following grounds:
(a) The subpoena seeks information which is privileged and must not be disclosed or admitted pursuant to s 126B of the Evidence Act 2011 (ACT);
(b) The subpoena serves no legitimate forensic purpose;
(c) The subpoena seeks to obtain information that is irrelevant to the instant proceedings;
(d) The subpoena constitutes a “fishing expedition”.
Consideration: Legal Principles and Legislative Regime
It is appropriate that any objection made by a party to the production of documents under subpoena is to be determined before their formal production to the Court. The objection must be dealt with prior to the Court making orders as to inspection of the subpoenaed documents: Waind v Hill and National Employers’ Mutual General Association [1978] 1 NSWLR 372 at 381-383; Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667 at 672.
A subpoena may be set aside in circumstances where the Court determines it is “vexatious, offensive or otherwise an abuse of the process of the Court which includes if it is fishing”: R v Polley (1997) 68 SASR 227 at 241.
In GB v Greater Western Sydney Area Service [2010] NSWSC 181 at [70] (GB v Greater Western Sydney Area Service), Hall J made the following observations about the principles derived from the judgment of Brereton J in Portal Software v Bodsworth [2005] NSWSC 1115 from [24]-[26]:
…The following propositions emerge:
1. The relevant test in terms of documents is whether they have
“a sufficient apparent connection to justify their production or inspection’”: White v Tulloch (1995) 127 FLR 105.
2. The test of adjectival relevance is satisfied if the material had apparent relevance and was established if the documents called for “could possibly throw light on the issues in the main case”: Trade Practices Commissioner v Arnotts Limited (1989) 21 FCR 306 per Beaumont J.
3. A subpoena has a legitimate forensic purpose if it appears to be “on the cards” that the documents sought will materially assist the defence in criminal proceedings: Alister v The Queen (1984) 154 CLR 404, 414 per Gibbs CJ: Regina v Saleam (1989) 16 NSWLR 14, 18.
Hall J further observed in GB v Greater Western Sydney Area Service at [71] that in dealing with an application to set aside a subpoena, the Court must not approach the enquiry as to whether the documents sought will “definitely” advance the case of the party issuing the subpoena, nor whether the documents will be admissible in evidence at the trial. The Court must be guided by the principles that the documents could “possibly throw light” on the issues to be determined at trial: see also Trade Practices Commissioner v Arnotts Limited (1989) 21 FCR 306; 88 ALR 90 at 103; DPP v Warren [2015] ACTSC 111 at [22]; Elmaraazey v Capital Lawyers Pty Ltd [2016] ACTSC 54 at [44]; Instyle Estate Agents Gungahlin Pty Ltd v Hambrook(No 2) [2020] ACTSC 293.
With respect to a “fishing expedition” in Llewellyn v Finn & Collins (1994) 116 FLR 211; 74 A Crim R 519 at 525 (Llewellyn v Finn) Martin CJ observed that a subpoena
…effectively seeking discovery, or which is designed to drag the lake in the hope of turning up some fish, or fish or a particular kind, remains objectionable.
The onus lies on the party seeking production and inspection of the documents under subpoena to establish that there is an issue or issues in the proceeding to which the documents relate. If the party is unable to particularise this, they are simply embarking on a fishing expedition which is not permissible: Llewellyn v Finn at 523; R v Charlton [1972] VR 758 at 761; Hunt v Warks & Ors (1985) 40 SASR 489 at 493.
In respect of criminal proceedings where the party seeking production of documents is the accused, it is accepted that a subpoena ought not to be set aside if the documents were necessary to support the defence of the accused: Sankey v Whitlam (1978) 142 CLR 1 at 42. In criminal matters, it is accepted that “in the balancing process the scales must swing in favour of discovery if the documents are necessary to support the defence of an accused person whose liberty is at stake in a criminal trial”: Alister v The Queen (1984) 154 CLR 404 at 414 (Alister v The Queen).
In reflecting on the “on the cards” test as outlined in Alister v The Queen, Bell J made the following observations in Ragg v Magistrates’ Courtof Victoria [2008] VSC 1; 18 VR 300 (Ragg v Magistrates’ Court of Victoria) at [92]-[93]:
The expression “on the cards” was used by Gibbs CJ in Alister v R as a metaphor to explain the applicable test. With respect, as a way of explaining that test, perhaps it has outlived its usefulness. As Cummins J showed convincingly in DPP v Selway, it can certainly mean different things in different contexts. But there is no doubt in my mind that Gibbs CJ did not use the metaphor to explain that the test was one of probability – that the accused had to show it was probable the documents would be useful to the defence. His Honour was contemplating something less, as the example he immediately gave…would indicate. How should the courts state with greater certainty the test given to us by Gibbs CJ?
To answer that question, I think it is necessary to balance two competing considerations: first, ensuring the fair trial of the accused by giving the defence access to material documents; and second, protecting the prosecution, and prosecutorial agencies, from unjustified summonses to produce. We have already seen a similar balance is struck in defining the scope of the prosecutor’s duty to disclose. That duty extends, for example, to material which tends to assist the defence case, but not to all material held by the prosecution... In determining an objection to a summons to produce in the criminal law context, the court is really determining, after balancing those competing considerations, what a fair trial between the prosecution and the accused requires the defence to be given.
(emphasis added)
As to whether a subpoena seeking material relevant only to credit possesses a legitimate forensic purpose, Brereton J in Liristis v Gadelrabb [2009] NSWSC 441 (Liristis v Gadelrabb) made the following observations at [4]-[5]:
It cannot be contended that the existence of a conviction of dishonesty would not be relevant to the question of credit. Moreover, even documents which, though not evidencing a conviction for dishonesty, enabled a party to establish or tend to establish that the other had made false statements when under an obligation to tell the truth, could legitimately provide the basis for cross-examination as to credit (under (NSW) Evidence Act 1995, s 103(2)).
I do not understand it ever to have been a proper objection to a subpoena that it seeks documents relating only to credit. Indeed, one of the fundamental distinctions between the processes of subpoenas for production and discovery is that subpoenas, unlike discovery, may be used to obtain documents relevant only to questions of credit, for the purpose of assisting cross-examination as to credit. It is true that in Fried v National Australia Bank (2000) 175 ALR 194, Weinberg J in the Federal Court of Australia said that it was inappropriate to permit a subpoena to stand which does little more than to trawl for documents that may be used to impugn the credit of a particular witness. I do not disagree with that observation, but it is not to say that it is inappropriate to permit a subpoena to stand that seeks documents that may be used to impugn the credit of a particular witness, as distinct from merely trawling for such documents. The concept of “trawling” in this context is the same as that of “fishing”. It is not fishing to seek documents when there are reasonable grounds to think that fish of the relevant type are in the pond or, as it has been expressed in other cases, that it is “on the cards” that relevant documents (even if they are relevant only to credit) will be elicited by the subpoena.
(emphasis added)
Section 126B in div 3.10.1A of the Evidence Act2011 (ACT) (Evidence Act) states:
126BExclusion of evidence of protected confidences
(1)The court may direct that evidence not be presented in a proceeding if the court finds that presenting it would disclose—
(a)a protected confidence; or
(b)the contents of a document recording a protected confidence; or
(c)protected identity information.
(2)The court may give a direction under this section—
(a)on its own initiative; or
(b)on the application of the protected confider or confidant (whether or not either is a party).
(3)The court must give a direction under this section if it is satisfied that—
(a)it is likely that harm would or might be caused (whether directly or indirectly) to a protected confider if the evidence is presented; and
(b)the nature and extent of the harm outweighs the desirability of the evidence being presented.
(4)Without limiting the matters that the court may take into account for this section, it must take into account the following matters:
(a)the probative value of the evidence in the proceeding;
(b)the importance of the evidence in the proceeding;
(c)the nature and gravity of the offence, cause of action or defence and the nature of the subject matter of the proceeding;
(d)the availability of any other evidence relating to the matters to which the protected confidence or protected identity information relates;
(e)the likely effect of presenting evidence of the protected confidence or protected identity information, including the likelihood of harm, and the nature and extent of harm that would be caused to the protected confider;
(f)the means (including any ancillary orders that may be made under section 126E) available to the court to limit the harm or extent of the harm that is likely to be caused if evidence of the protected confidence or the protected identity information is disclosed;
(g)if the proceeding is a criminal proceeding—whether the party seeking to present evidence of the protected confidence or protected identity information is a defendant or the prosecutor;
(h)whether the substance of the protected confidence or the protected identity information has already been disclosed by the protected confider or someone else;
(i)the public interest in preserving the confidentiality of protected confidences;
(j)the public interest in preserving the confidentiality of protected identity information.
(5)The court must state its reasons for giving or refusing to give a direction under this section.
Section 126A of the Evidence Act contains definitions of key terms for div 3.10.1A. It provides as follows:
126ADefinitions—div 3.10.1A
(1)In this division:
confidant—see the definition of protected confidence.
harm includes actual physical bodily harm, financial loss, stress or shock, damage to reputation or emotional or psychological harm (for example, shame, humiliation and fear).
protected confidence means a communication made by a person in confidence to someone else (the confidant)—
(a)in the course of a relationship in which the confidant was acting in a professional capacity; and
(b)when the confidant was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law or can be inferred from the nature of the relationship between the person and the confidant.
protected confider means a person who made a protected confidence.
protected identity information means information about, or enabling a person to ascertain, the identity of the person who made a protected confidence.
(2)For this division, a communication may be made in confidence even if it is made in the presence of a third party if the third party’s presence is necessary to facilitate communication.
It is important to note that there is another regime specifically targeted to protected confidences in sexual offence proceedings contained within div 4.4.3 of the EMP Act. The definition of a “protected confidence” for the purpose of sexual offence proceedings is provided in s 79A of the EMP Act as follows:
79AMeaning of protected confidence—div 4.4.3
(1)For this division, a protected confidence is a counselling communication made by, to or about a person against whom a sexual offence was, or is alleged to have been, committed (the counselled person).
(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
(5)In this section:
sexual offence includes alleged sexual offence.
The schedule to the subpoena specifically excluded any documents that met the definition of protected confidence material within the meaning of s 79A of the EMP Act. The regime set in div 4.4.3 of the EMP Act for protected material within the meaning of s 79A does not fall to be considered in respect of the subpoena. The documents under subpoena may however meet the definition of “protected confidence” in s 126A of the Evidence Act and may require consideration of the test in s 126B of the Evidence Act at trial: see also s 131A of the Evidence Act re application to subpoenas.
Prosecution Submissions
The prosecution submitted the subpoena was a prima facie fishing expedition. The schedule of the subpoena sought all records relating to the mental health of the complainant dated 12 July 2019. It was emphasised that the specified date is approximately four weeks after the conclusion of the alleged offending by the accused.
It was submitted that even if one was to assume that the complainant does have a mental illness, it would be difficult to see how any diagnosis or assessment with respect to a mental illness is relevant to a fact in issue. The prosecution submitted that it would be wrong to automatically assume that any person with a mental illness is incompetent, dishonest, violent or dangerous, or that the credibility of their evidence would be detracted from in light of the presence of a mental illness.
The prosecution sought that the accused identify expressly and with precision the purpose for which access to the documents are sought for the subpoena: R v Saleam (1989) 16 NSWLR 14 at 17 (R v Saleam); Ragg v Magistrates’ Courtof Victoria at [91].
It was submitted that the documents sought under the subpoena are of an inherently private and confidential nature that go to the heart of the doctor-patient relationship. The prosecution submitted that the documents constitute a “protected confidence” for the purpose of s 126A and should be excluded pursuant to s 126B of the Evidence Act.
The prosecution made reference to the Hippocratic oath and submitted it lies at the core of medical ethics and the modern doctor-patient relationship. It was noted that the Hippocratic oath recognises the need for confidentiality surrounding the disclosure of information divulged in the course of that relationship. The Oath of Hippocrates of Kos, originating in the 5th century B.C., provided that:
All that may come to my knowledge in the exercise of my profession [as a physician] which ought not to be spread abroad, I will keep secret and never reveal.
Reference was made to an amicus curiae brief filed by the Association of American Physicians and Surgeons in a proceeding surrounding the right to privacy as protected by the Fourth Amendment to the United States Constitution: United States v Zadeh (5th Cir, No 15-10195, 31 January 2015). The relevant submission of the Association of American Physicians and Surgeons contained the following:
Unconsented access to one’s medical records is a trap door to his or her most private information, typically more personal than what is commonly said on a phone call or what may be found in one’s home. Moreover, the ability of someone to obtain optimal medical care depends on full confidence in the privacy of the medical record. There would be a pronounced chilling effect from allowing nearly unlimited access by the federal government.
Further reliance was also placed on the Australian Medical Association’s ‘Ethical Guidelines for Disclosing Medical Records to Third Parties 2010 (revised 2015)’ which provides at 1.1-1.3:
Trust is a vital component of the doctor-patient relationship. Patients trust doctors to keep their personal information confidential including their medical records. Because of this relationship, patients should feel confident in fully disclosing their personal information to their doctor and undergoing intimate examinations and investigations that are necessary for their appropriate medical management.
Doctors base their professional judgment regarding a patient’s medical management on the full and frank disclosure of the patient’s personal information. It is imperative that patients remain confident that this information is protected by their doctor to the extent permitted by law. There is the very real and serious risk that patients may either not attend a doctor or may limit or falsify the personal information they provide to their doctor because of fears that their privacy may be breached, potentially resulting in serious consequences for the patient’s health care. This is especially relevant for patients who may already perceive or experience barriers to appropriate medical care.
Doctors have an ethical, professional and legal duty to protect their patients’ personal information, including their medical records. Maintaining confidentiality of the patient medical record to the extent allowed at law is essential to the therapeutic relationship and secures the necessary trust and openness that characterises the ongoing communication between doctors and their patients to optimise patient care.
The prosecution submitted that medical records pertaining to the treatment of a mental illness are amongst the most sensitive types of medical records that can be kept. It was submitted that mental health and mental illness records would be at the upper end of a spectrum of the expectation of privacy patients have. This was attributed to the embarrassment, humiliation, and distress that those living with a mental illness often feel about their condition, and the stigmatisation that often surrounds mental illness.
It was submitted that the intrusion upon the complainant’s privacy in this matter would be amplified considerably by the implication that the person to whom the documents under subpoena would be released to is the accused. Noting that the accused is the person alleged to have subjected the complainant to multiple occasions of sexual acts, it was submitted that this would compound the complainant’s distress, embarrassment, and humiliation that the release of the medical documents would likely cause.
The prosecution asserted that there was a significant risk that the release of the documents under subpoena may have a chilling effect with respect to future child complainants of sexual offences. The submission was based on complainants who may consider disclosing offences committed against them, but who would be deterred from doing so when they consider the distressing prospect of the accused obtaining their sensitive medical records for the purpose of attacking their credibility.
In relation to s 126B of the Evidence Act, the prosecution submitted that the initial starting point is that the release of the documents would cause substantial harm to the complainant. The release of documents would also undermine the public interest in maintaining the integrity of the doctor-patient relationship and protecting personal identity information.
The prosecution noted that the burden rested squarely upon the accused to show that the desirability of releasing all of the complainant’s mental health records on 12 July 2019 outweighs the substantial harm that will be caused by the release. It was submitted that to succeed in this balancing exercise, the accused would have to demonstrate at a minimum that the documents were not only merely relevant to a fact in issue, but that the documents will have significant probative value.
Accused Submissions
Counsel for the accused emphasised that the credit of the complainant will be in issue at the trial. It was submitted that the potential incidence of self-harm was conduct that may be relevant to the complainant’s mental health and the effects of her medication. Counsel asserted that such conduct may be relevant to the jury’s assessment of the credit or reliability of the complainant’s evidence. It was submitted the legitimate forensic purpose of the subpoena was to seek the disclosure of the complainant’s attendance to the Canberra Hospital on 12 July 2019.
Counsel also noted that part of the prosecution brief of evidence contained a medical certificate from a psychiatrist, Dr Brenton McKewin. The certificate indicated that in February 2019 the complainant’s medication regime included the drug Sertraline for anxiety. Counsel submitted that known side effects of Sertraline include:
(a) Dangerous impulsive behaviour;
(b) Hallucinations and delusions;
(c) Reckless behaviour;
(d) Unusually grand ideas;
(e) Excessive happiness; and
(f) Excessive irritability.
In respect of the prosecution’s submission that the material sought must not only be relevant to a fact in issue, but also must be shown to have significant probative value, counsel for the accused submitted that the prosecution had misconstrued the appropriate test. Counsel relied upon the test of determining legitimate forensic purpose as outlined in Alister v The Queen at 414 that the Court must be satisfied it is “on the cards” that the documents would materially assist the accused in his defence. It was submitted that the standard relied upon by the prosecution was inappropriate and incorrect for determining whether a legitimate forensic purpose exists in criminal proceedings.
Counsel further submitted that the accused is entitled to seek production of such documents as are necessary for the conduct of a fair trial. Counsel relied on the following observation from Ragg v Magistrates’ Court of Victoria at [96]:
A legitimate purpose is demonstrated where the court considers, having regard to its fundamental duty to ensure a fair trial, that there is a reasonable possibility the documents will materially assist the defence. That is a low threshold, but it is a threshold.
It was asserted that the prosecution’s submission that the subpoena constitutes a gross invasion of the complainant’s privacy was without foundation. Counsel also submitted that the prosecution misapprehended the balance which is to be struck between the interests of justice and the interests of maintaining the confidentiality of medical records.
Counsel noted that the schedule to the subpoena articulated that protected confidence as defined under s 79A of the EMP Act, are excluded from production. It was submitted that s 79A was enacted for the very purpose of ensuring the balance is struck to ensure a complainant’s privacy is not invaded unnecessarily or without foundation. Counsel submitted that the qualified breadth of the records sought is not objectionable in light of an expectation of privacy. It was submitted that the accused’s right to a fair trial trumps a complainant’s right to privacy save only insofar as the Legislative Assembly stipulates. Counsel submitted that the accused did not seek to go beyond the legislated bounds of s 79A of the EMP Act.
In respect of whether the subpoena constituted a “fishing expedition”, counsel submitted that there was clearly evidence that at relevant time:
(a) The complainant had mental health issues;
(b) The complainant was receiving expert psychiatric and other treatment in relation to mental health issues;
(c) The complainant was medicated in a way which might explain her allegations;
(d) The allegations are wholly denied by the accused.
As the credit of the complainant is likely to be a significant issue in the accused’s trial, counsel submitted that the documents produced under the subpoena would most likely be used to cross-examine the complainant. Such cross-examination would focus on the honesty and integrity of the complainant’s complaints to police about the accused’s alleged conduct. Counsel for the accused relied on Liristis v Gadelrabb at [4]-[5] in submitting that a subpoena seeking documents to impugn the credit of the complainant was permissible.
Counsel noted that s 165 of the Evidence Act applies to evidence which may be unreliable, including because of age or ill health (whether physical or mental). It was noted that the Judge must warn the jury of the need for caution in deciding whether to accept the evidence and the weight to be given to it unless there are good reasons for not doing so: s 165(3) Evidence Act. It was submitted that access to the medical records held by the Canberra Hospital may enliven the application of a s 165 warning as the following matters were non-contentious between the parties:
(a) The complainant lived with mental health issues prior to moving into the home occupied by the accused and his wife;
(b) The complainant was medicated in relation to her mental health at that time;
(c) The complainant continued to undergo psychiatric treatment during the period of her cohabitation;
(d) The complainant was still living with mental health issues when she participated in her eight evidence in chief interviews with police.
Conclusion
The subpoena does not seek a protected confidence as defined under s 79A of the EMP Act. In criminal matters it is accepted that in the balancing process the scales must swing in favour of discovery if the documents support the defence of an accused person whose liberty is at stake in a criminal trial: Alister v The Queen at 414. What might provide for proper and fruitful cross-examination is allowable: Maddison v Goldrick [1976] 1 NSWLR 651 at 667-668. Similarly, in R v Saleam at 19 Hunt J observed:
An accused is prima facie entitled to inspect any document which may give them the opportunity to pursue a proper and fruitful course in cross-examination. A Crown prosecutor is appointed to assist in the ascertainment of the truth, not simply to obtain a conviction.
I am satisfied it is “on the cards”, or in other words, a reasonable possibility that the documents would materially assist the accused in his defence: Ragg at [96]. There is such a reasonable possibility in this case as envisaged by the authorities discussed above.
In summary:
· The subpoena does not constitute what has been referred to as a “fishing expedition”.
· The subpoena does not seek to obtain information that is irrelevant to the instant proceedings. Credit is relevant: see Liristis v Gadelrabb at [4]-[5].
· I am satisfied the subpoena serves a legitimate forensic purpose.
· The documents under subpoena may meet the definition of a protected confidence under s 126A of the Evidence Act and may require consideration of the test in s 126B at trial: see R v Woutersz (No 1) [2016] ACTSC 396; R v Woutersz (No 2) [2016] ACTSC 397.
Section 131A of the Evidence Act
It is relevant to refer to s 131A of the Evidence Act at this juncture. Section 131A provides that:
131AApplication of div 3.10.4 to preliminary proceedings of courts
(1)If—
(a)a person is required by a disclosure requirement to give information, or to produce a document, which would result in the disclosure of a communication, a document or its contents or other information mentioned in division 3.10.1, division 3.10.1A, division 3.10.1C or division 3.10.3; and
(b)the person objects to giving the information or providing the document;
the court must decide the objection by applying the provisions of this part (other than section 123 (Loss of client legal privilege—defendants) and section 128 (Privilege in relation to self‑incrimination in other proceedings)) with any necessary modification as if the objection to giving information or producing the document were an objection to the giving or presenting of evidence.
(2)For this section, disclosure requirement means a process or order of a court that requires the disclosure of information or a document and includes the following:
(a)a summons or subpoena to produce documents or give evidence;
(b)pre-trial discovery;
(c)non-party discovery;
(d)interrogatories;
(e)a notice to produce;
(f)a request to produce a document under division 4.6.1 (Requests to produce documents or call witnesses).
…
Therefore, the section appears to provide for this question of exclusion of evidence to be determined at the preliminary subpoena stage. If I must determine this question at this stage, in my view, considering the criteria in s 126B of the Evidence Act, it is appropriate to refuse to give a direction as sought by the prosecution.
This is because taking into account the matters set out under s 126B(4)(a)-(j) (noting that this does not limit the relevant matters) it is inappropriate, in my view, to determine this matter at this stage. For example: (b) the importance of the evidence in the proceeding is unknown and (d) the availability of other evidence is unknown at this stage.
Therefore, I will not give a direction under s 126B of the Evidence Act as the prosecution has not satisfied me of the relevant matters under s 126B(3).
I note in this regard that s 131A of the Evidence Act raises difficult issues as underlined by Odgers in Uniform Evidence Law (Thomson Reuters, 16th ed, 2021). The purpose behind this provision is to bring the law of privilege in relation to pre-trial production into line with the law as it applies at trial: TransGrid v Members of Lloyds Syndicate 3210 [2011] NSWSC 301 at [10]. The aim is that the disclosure stage is the same as trial stage. The circumstances, however, as between pre-trial production and trial, are different.
As stated by Odgers in Uniform Evidence Law:
For example, the question at trial will be the “giving or adducing” of the evidence (and the factors that the court is required to take into account will bear on that question). In contrast, pre-trial disclosure may be required even if the information or document would be inadmissible at a trial (because, for example, it will assist a party to find other information or documents that are admissible).
Relevantly, difficulties have also been discussed in Ku-ring-gai Council v West [2017] NSWCA 54; 95 NSWLR 1 at [78] and Desane Properties Pty Ltd v New South Wales [2018] NSWSC 173 at [55]-[57].
Finally, I note that the present matter is set down for the taking of evidence of the complainant at a pre-trial hearing in the week commencing 11 October 2021.
Orders
I make the following orders:
(a) The prosecution’s application in proceeding dated 25 May 2020 seeking the subpoena addressed to The Canberra Hospital be set aside is dismissed.
(b) The parties have liberty to approach chambers for orders to be made as to inspection of the subpoenaed documents pursuant to r 6609 of the Court Procedure Rules.
| I certify that the preceding fifty-five [55] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson Associate: Rhiannon McGlinn Date: 28 September 2021 |
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