R v Sawyer-Thompson (Ruling No 1)
[2016] VSC 316
•23 May 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2015 0070
Between:
| THE QUEEN | |
| and | |
| BONNIE KATE SAWYER-THOMPSON | Accused |
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JUDGE: | Croucher J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 May 2016 | |
DATE OF RULING: | 23 May 2016 | |
CASE MAY BE CITED AS: | R v Sawyer-Thompson (Ruling No 1) | |
MEDIUM NEUTRAL CITATION: | [2016] VSC 316 | |
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CRIMINAL LAW – Murder trial – Return of subpoena issued by DPP to psychologist to produce file note referred to in psychological report on accused – Report commissioned by accused’s solicitor and served on DPP – File note contains instructions of accused – Accused objects to disclosure of file note to DPP – Whether file note must be produced pursuant to Practice Note No. 2 of 2014: Expert Evidence in Criminal Trials – Whether any client legal privilege over file note waived – Evidence Act 2008 (Vic), ss 117, 118, 119 & 122 & 131A – Criminal Procedure Act 2009 (Vic), s 189.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C. Thompson | Office of Public Prosecutions |
| For the Accused | Ms R. Sleeth | Victoria Legal Aid |
HIS HONOUR:
Overview
Bonnie Kate Sawyer-Thompson (“the accused”) is charged with the murder of Jack Brian Nankervis (“the deceased”) at Morwell on 20 June 2014.
At trial, the accused proposes to rely on the defence of duress. The accused’s solicitors have had her examined by forensic psychologist Jeffrey Cummins. Mr Cummins has prepared a report, dated 21 September 2015, in which he expresses opinions potentially relevant to such a defence. It is proposed that Mr Cummins will be called in the defence case at trial.
Mr Cummins’ report has been filed with the Court and served on the Director of Public Prosecutions for Victoria (“the Director”). A pre-trial hearing is about to occur at which Mr Cummins and two other experts (who are to be called at trial by the Director) are to give evidence and be cross-examined.
In paragraph [3] of his report, Mr Cummins lists various documents he read, including a “File Note dated 8/9/2014 detailing Ms Sawyer-Thompson’s instructions about the offence and her relationship with … Phil Mifsud”. The accused told Mr Cummins that Mr Mifsud is the person with whom she was in an abusive relationship and who in effect forced her to kill the deceased.
The Director has issued a subpoena to Mr Cummins requiring the production of the file note. Mr Thompson, who appears for the Director, calls upon the subpoena. Ms Sleeth, who appears for the accused, objects to release of the file note. She makes an application to set aside the subpoena, essentially on the basis that the file note is the subject of client legal privilege that has not been waived. Mr Thompson submits that the file note must be produced pursuant to Practice Note No. 2 of 2014: Expert Evidence in Criminal Trials and that, in any event, any client legal privilege over the document has been lost by waiver.
For reasons that follow, I have concluded that the application to set aside the subpoena must fail and that the file note must be released to the Director.
Background
I shall turn now to the details of the circumstances giving rise to this matter.
The report contains a very detailed history from the accused, including an account of the relationship between the accused and Mr Mifsud and an account of the events leading up to the killing; the results of neuropsychological testing; a mental status examination; and opinions and conclusions. In the latter section of the report, Mr Cummins expresses the opinions:
a) that the accused has a full scale IQ of only 70, which places her at the bottom of the borderline range;
b) that she suffers from post-traumatic stress disorder (“PTSD”), and developed the symptoms of that disorder, including depression and anxiety, as a result of being in a verbally, physically and possibly sexually abusive relationship with Mr Mifsud; and
c) that the accused believed that, at the time of the killing, if she did not kill the deceased as directed by Mr Mifsud, she and members of her family would be killed or really seriously injured; that the only reasonable way the threatened harm could be avoided was to kill the deceased; and that that conduct was perceived by her as a reasonable response to the threat made, given the abusive relationship to which she had been subjected by Mr Mifsud.
Following receipt of the report, the solicitor handling the matter at the Director’s office, on 3 and 17 May 2016, emailed the accused’s counsel (who is a Senior Public Defender at Victoria Legal Aid) requesting a copy of the file note.
Later on 17 May, counsel emailed her response. Amongst other things, she said:
a) she was told by her “then solicitor [the note] was compiled from a number of sources and may not be a complete and accurate account of [the accused’s] instructions”;
b) that the document is privileged, unless Mr Cummins used it to form his opinion, and it does not appear that he relied on it but rather seems to have taken his own comprehensive history;
c) that, in so far as the file note gave rise to any perceived prior inconsistent statements, it would be unfair to put those to the accused, given her psychological difficulties (as noted by the Director’s own expert); and
d) that, if the accused disputed the account in the file note, this may create “organisational conflict” that needs to be addressed now rather than at a later point.
On 18 May 2016, the accused’s counsel emailed Mr Cummins and asked whether he could tell her “how, if at all, [he] used the information in [the file note] to form [his] opinion contained in [his] report”.
The same day, Mr Cummins responded as follows:
I confirm I have examined my file concerning Ms Sawyer-Thompson. My file contains the “File Note” dated 8/9/2014. I have extensively underlined material in that file note.
I confirm my usual practice when provided material in a file note is to read that material and, if appropriate, be guided by that material when I take a detailed history from the patient. In relation to Ms Sawyer-Thompson I took 161/2 pages of handwritten notes.
I have no specific recollection about relying on any particular dot points contained in the file note, either when I interviewed her or when I dictated the report on her …
The Practice Note
Mr Thompson submitted that the provisions of Practice Note No. 2 of 2014: Expert Evidence in Criminal Trials (“the Practice Note”) compel the production of the file note to the Director. He pointed to the following parts of the Practice Note:
a) The Practice Note applies to “any expert report … upon which … an accused proposes to rely at the trial”.[1]
[1]Clause 3.1(a), Practice Note No. 2 of 2014: Expert Evidence in Criminal Trials.
b) All expert reports to which the Practice Note applies “shall state the opinion of the expert and shall state, specify or provide … the material, observed facts, recorded facts, assumed facts and other assumptions on which each opinion expressed in the report is based (a letter of instructions may be annexed)”.[2]
[2]Clause 4.1(d), Practice Note No. 2 of 2014: Expert Evidence in Criminal Trials.
c) “A party wishing to introduce expert evidence must …, at the time of the service of the expert report, provide a copy of any photograph, plan or other document referred to in the report”.[3]
[3]Clause 6.1(c), Practice Note No. 2 of 2014: Expert Evidence in Criminal Trials.
d) “If a recipient party so requests, the commissioning party must, subject to [Clause] 7.3, give that party a copy of, or ensure that the party has reasonable opportunity to inspect … the instructions and material given to the expert by the commissioning party”.[4]
[4]Clause 7.1(i), Practice Note No. 2 of 2014: Expert Evidence in Criminal Trials.
e) Clause 7.2 provides that a “party may not introduce expert evidence if that party has not complied with [Clause] 7.1, unless (a) every other party agrees; or (b) the Court gives leave”.[5]
[5]Clause 7.2, Practice Note No. 2 of 2014: Expert Evidence in Criminal Trials.
f) Pursuant to Clause 7.3, a “commissioning party or the expert may withhold material referred to in [Clause] 7.1 on any basis upon which objection could be taken if the material had been required to be produced under subpoena”.[6]
g) Where “material is withheld in reliance on [Clause] 7.3, the commissioning party must ensure that the recipient is aware of the withholding and the reason for it”.[7]
h) The “Court may resolve any dispute in relation to the withholding of material under [Clause] 7.3”.[8]
[6]Clause 7.3, Practice Note No. 2 of 2014: Expert Evidence in Criminal Trials.
[7]Clause 7.4, Practice Note No. 2 of 2014: Expert Evidence in Criminal Trials.
[8]Clause 7.5, Practice Note No. 2 of 2014: Expert Evidence in Criminal Trials.
Thus, in short, Mr Thompson’s first submission is that those provisions mean that, since the accused is proposing to rely on the report at trial and the file note is referred to in the report, it must be produced unless there is a proper basis for withholding it.
I should note two matters at this point. First, it does not seem to me that the accused proposes to rely on the report at trial. If that is correct, it might be said that the Practice Note has no application at this point, given the terms of Clause 3.1(a). In the usual course, the report would not be sought to be tendered in evidence. Rather, presumably, Mr Cummins would give evidence at trial in accordance with the opinions he expresses in the report, in so far as those opinions might be admissible in evidence. The report has been filed with the Court and served on the Director presumably in an attempt to comply with the Practice Note[9] but, more fundamentally, to give the Court and the Director notice of the evidence Mr Cummins might give. On the other hand, as indicated above, Clause 7.2 provides that a party may not introduce expert evidence if that party has not complied with Clause 7.1 (such as by providing the instructions and material given to the expert by the commissioning party), unless the other party agrees or the Court gives leave. Thus, there seems to be a tension between Clauses 3.1(a) and 7.2.
[9]And perhaps s 189 of the Criminal Procedure Act 2009 (Vic). See below.
Secondly, counsel did not submit that the Practice Note had the force of law. I should add that, in a different but related context, doubts have been expressed by the Court of Appeal about whether procedures seemingly authorized by the Practice Note are in fact authorized by law.[10]
[10]See Ta-Vuong v The Queen [2015] VSCA 238 at [108]-[110] (Priest JA) and [125] (Croucher AJA).
It is, however, unnecessary to resolve these two questions. This is because, whatever their answer, the parties accept, correctly in my view, that this matter is to be determined by the law concerning “client legal privilege”. Further, as already indicated, Clause 7.5 of the Practice Note provides that the Court may resolve any dispute in relation to the withholding of material under Clause 7.3.
Client legal privilege and waiver
Accordingly, I turn now to the issue of client legal privilege and whether such privilege has been waived.
As I understand his submission, while he has not seen the file note, Mr Thompson accepts that the description of the document in Mr Cummins’ report means that, when it was created, it was a “confidential document”, within the meaning of that term in ss 117, 118 and 119 of the Evidence Act 2008 (Vic) and related provisions, and was subject to what the heading to s 122 of the same Act describes as “client legal privilege”.
His further submission, however, is that such privilege as existed has been waived. There has been waiver, it is submitted, because it is apparent that, by referring to the note in his report and by reading and underlining its contents extensively, Mr Cummins must have used its contents in forming his opinion. In this regard, Mr Thompson relied on s 122(1), which provides that the provisions concerning client legal privilege do not prevent the adducing of evidence given with the “consent” of the client or party concerned, as the concept of consent is understood in the cases.
In the alternative, he relies on waiver pursuant to s 122(2), because the accused, through her solicitor, “has acted in a way that is inconsistent with [her] objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120” of the Act. In particular, since “the substance of the evidence [i.e. the information in the file note] has been disclosed [to Mr Cummins] with the express or implied consent of [the accused]”, the accused is taken to have acted in a way that is inconsistent with adducing the evidence (see s 122(3)(b)).
Ms Sleeth submits that there has been no waiver. In support of that submission, she relies on the decision of White J in New Cap Reinsurance Corporation Ltd (In Liq) v Renaissance Reinsurance Ltd.[11] In that matter, which concerned whether the first plaintiff was insolvent at a particular time, the plaintiffs filed and served an expert’s report on insolvency. The defendant sought discovery of draft reports and documents recording instructions from the plaintiffs’ solicitors to the expert in relation to preparation of the report. Ms Sleeth relies on a passage in White J’s judgment where the following was said:[12]
… Rather, the question is whether privilege in draft reports and prior communications between the plaintiffs’ solicitors and the expert, and related documents, has been waived. The service of the final report did not disclose the substance of the prior communications. There is no question of privilege having been waived pursuant to s 122(2).
[11]New Cap Reinsurance Corporation Ltd (In Liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258.
[12]New Cap Reinsurance Corporation Ltd (In Liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258 at [43].
Thus, in Ms Sleeth’s submission, since Mr Cummins’s report did not disclose the substance of the prior communications, s 122(2) was not engaged.
Further, in her submission, s 122(1) is not engaged because it could not be said that the contents of the file note influenced the content of the report in such a way that the use of the report would be inconsistent with maintaining privilege in the note, such as, where it would be unfair to rely on the report without disclosure of the note. In this regard, Ms Sleeth relies on another passage from White J’s judgment in New Cap dealing with s 122(1),[13] to which I shall refer shortly.
[13]New Cap Reinsurance Corporation Ltd (In Liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258 at [53].
Both counsel accept that I should consider the file note in order to determine whether its contents influenced the content of the report.
Both counsel also accept that, should I consider it necessary to do so, I could hear evidence from Mr Cummins on the issue.
Conclusions
I turn now to my conclusions.
Waiver under s 122(1)
As White J explained in his judgment in New Cap, it is now well established that consent under s 122(1) includes consent which will be imputed to a party on the same principle where, at common law, a party will be taken to have waived privilege, even though she did not subjectively intend to do so.[14] In that regard, as Gleeson CJ, Gaudron, Gummow and Callinan JJ said in Mann v Carnell:[15]
Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether the particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that the waiver is “imputed by operation of law”. This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. … What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.
[14]New Cap Reinsurance Corporation Ltd (In Liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258 at [44], referring to Chen & Ors v City Convenience Leasing Pty Ltd & Anor [2005] NSWCA 297 at [29]-[33].
[15]Mann v Carnell (1999) 201 CLR 1 at 13[29].
I have read the file note and the report carefully. Over thirty of the topics of instruction by the accused recorded in the file note also find expression in the report. Those topics relate to matters that go to the relationship between the accused and Mr Mifsud and the events leading up to the killing. In circumstances where Mr Cummins has also read and underlined the file note, I am satisfied that it is plain that the contents of the note have influenced his opinions in the report. None of that is to say that Mr Cummins did not take his own history. Indeed, I accept he did, and that he made over sixteen pages of his own notes in doing so. But, even if the instructions contained in the file note were matters that he used merely to raise questions of the accused about her relationship with Mr Mifsud and the events leading up to the killing for the purpose of exploring whether there might be something in the claim of duress – and I consider it to be a safe inference to draw that he used the file note at least to that extent – that is sufficient to cause me to conclude that Mr Cummins’ opinions were influenced by the file note and that s 122(1) is thereby engaged. I also accept Mr Thompson’s submission that, in all the circumstances, it would be unfair to deny the Director access to the file note.
I do not consider it necessary to hear evidence from Mr Cummins on the issue. In his email, he said he has “no specific recollection about relying on any particular dot points contained in the file note”. I take that to mean that he cannot assist the Court on this question. That is perhaps not surprising. I expect he would have seen numerous patients and written numerous reports since he wrote the report in question. In any event, in my view, the documents speak for themselves.
That White J took a different view on the similar question before him in New Cap is not to the point. That case involved different facts. The expert in that case specified the materials used in support of his opinion. Those materials, however, did not include letters of instruction. His Honour found that it could not be said that the documents sought could have influenced the content of the final report in such a way that the service or use of the report would be inconsistent with maintaining confidentiality in the privileged documents. For the reasons I have given, I take a different view of the circumstances in the present case.
Accordingly, the application to set aside the subpoena must fail and the file note must be released to the Director.
Waiver under s 122(2)
Strictly speaking, that conclusion makes it unnecessary to consider whether waiver has also occurred pursuant to s 122(2). However, I make the following points.
First, the passage in White J’s judgment to which Ms Sleeth referred was preceded by other significant remarks. In full, the paragraph reads as follows:[16]
The consequence of the expert’s report having been served under compulsion of law is that s 122(2) does not apply so as to permit the adducing of the report as evidence over the plaintiffs’ objection, on the ground that the plaintiffs have knowingly and voluntarily disclosed to another person the substance of that evidence. That is not the present question. The question is not whether privilege in [the expert’s] final report is being waived because its disclosure was under compulsion of law. Rather, the question is whether privilege in draft reports and prior communications between the plaintiffs’ solicitors and the expert, and related documents, has been waived. The service of the final report did not disclose the substance of the prior communications. There is no question of privilege having been waived pursuant to s 122(2).
[16]New Cap Reinsurance Corporation Ltd (In Liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258 at [43].
His Honour’s reference to “compulsion of law” was a reference to the fact that the Court had ordered that any such report be filed and served. Further, s 122(2) is expressed to be subject to s 122(5), which provides inter alia that “[a] client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because … the substance of the evidence has been disclosed … under compulsion of law”. Thus, the reason s 122(2) was not engaged in New Cap was because the report had been disclosed under compulsion of law and not because the report failed to disclose the substance of the letters of instruction.
Secondly, however, it might be said that Mr Cummins’ report was disclosed under compulsion of law – in particular, because of the requirements of the Practice Note and/or because of the requirements of s 189 of the Criminal Procedure Act 2009 (Vic). The latter provision provides as follows:
Expert evidence
(1) If the accused intends to call a person as an expert witness at the trial, the accused must serve on the prosecution in accordance with section 392 and file in court a copy of the statement of the expert witness in accordance with subsection (2) –
(a) at least 14 days before the day on which the trial of the accused is listed to commence; or
(b) if the statement is not then in existence, as soon as possible after it comes into existence.
(2) The statement must –
(a) contain the name and business address of the witness;
(b) describe the qualifications of the witness to give evidence as an expert;
(c) set out the substance of the evidence it is proposed to adduce from the witness as an expert, including the opinion of the witness and the acts, facts, matters and circumstances on which the opinion is formed.
If it were necessary to do so, I should like to hear the parties further on these questions. Nevertheless, I can indicate that my present inclination is that the instructions contained in the file note were disclosed to Mr Cummins with the express or implied consent of the accused but that the report – and therefore the existence of the file note – was disclosed to the Court and the Director under compulsion of law. It may be that the latter conclusion would mean that s 122(2) is not engaged in the present case. As I have said, however, it is unnecessary to decide these questions and I express no concluded view on them.
Use of the file note
Finally, I should add that my conclusions that the application to set aside the subpoena must fail and that the file note must be released to the Director do not mean that its contents ultimately will be admitted into evidence, whether at the trial proper or in the pre-trial hearing that is about to occur. I say that despite the fact that s 122 and the related provisions in the Act speak about the “giving or adducing of evidence” as opposed merely to the discovery or the like of documents.
Whether any part of the file note might be adduced in evidence at the trial proper or in the pre-trial hearing, and, if so, for what purpose, will turn on other considerations applicable to the particular question of admissibility at hand.
In my view, such an approach is consistent with the terms of s 131A of the Act, which make it clear that the privilege provisions apply, with any necessary modification, to an objection to produce any document pursuant to a subpoena as if the objection to producing the document were an objection to the giving or adducing of evidence.
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