R v Scott Alexander Basham - [2009] ACTSC 142

R v SCOTT ALEXANDER BASHAM
[2009] ACTSC 142 (23 OCTOBER 2009)

APPLICATION – application for leave to disclose protected confidence.
PRACTICE AND PROCEDURE – protection of counselling notes for victims of sexual assault – disclosure of protected confidences – preliminary examination – oral examination of counsellor – inspection of counselling notes – inspection does not support assisted forensic purpose – public interest in preserving confidentiality of counselling notes outweighs the public interest in ensuring fair trial to the applicant – leave for disclosure refused – Evidence (Miscellaneous Provisions) Act 1991 (ACT).

Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 59, s 62, s 63

No. SCC 195 of 2006

Judge: Gray J
Supreme Court of the ACT

Date: 23 October 2009

IN THE SUPREME COURT OF THE       )
  )          No. SCC 195 of 2006
AUSTRALIAN CAPITAL TERRITORY    )

R
v
SCOTT ALEXANDER BASHAM

ORDER

Judge:  Gray J
Date:  23 October 2009
Place:  Canberra

THE COURT RULES THAT:

The application for leave for the disclosure of the protected confidence be refused.

The accused, Scott Basham, has made an application for leave to disclose a protected confidence pursuant to s 59 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the Act).
The relevant provisions of the Act are attached as an appendix.
The accused has been charged that on 13 December 1992 he “engaged in sexual intercourse with [the complainant] without her consent and knowing that she did not consent”.
The offence allegedly occurred when the complainant was an officer cadet in the Defence Force. After graduation and service in the Defence Force, the complainant undertook psychological counselling.
The complainant first went to the police about these allegations on 5 November 2004.
Prior to the complainant going to the police, she had been counselled by a clinical psychologist, Ms Ann MacDonald. That counselling commenced on 26 September 2003. On 2 August 2004, the complainant made an application for compensation to the Military Compensation and Rehabilitation Service on the ground of a depressive disorder on the basis that she was “raped whilst on duty”.
In the committal proceedings in this matter, the counselling notes were wrongly produced under subpoena. The accused seeks leave to disclose the protected confidence pursuant to s 62 of the Act.
For this purpose, the accused sought to establish a legitimate forensic purpose for seeking the leave (see s 60 of the Act).
The accused identified the forensic importance to him of the counselling notes as to:
§           whether prior counselling did take place;
§           whether light would be shed on the absence of an earlier complaint;
§           whether the more recent counselling is itself the genesis of the allegations against the accused.
It was also pointed out that there was a potential inconsistency as to the location where the sexual assault was said to have occurred.
On the basis of these matters, I was satisfied that there was an arguable case that the evidence in relation to which the leave was sought would materially assist the accused…

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 Scott Alexander Basham

Details

AGLC: R v Scott Alexander Basham [2009] ACTSC 142
Case: [2009] ACTSC 142
Decision Date: 23 OCTOBER 2009

CaseChat Overview and Summary

In the case of R v Scott Alexander Basham, the defendant sought leave to disclose protected confidences that were recorded by a counsellor of a sexual assault victim. The application was made under the Evidence (Miscellaneous Provisions) Act 1991 (ACT). The legal issues before the court were whether the public interest in ensuring a fair trial for the defendant outweighed the public interest in preserving the confidentiality of the protected confidences, and if so, to what extent leave should be granted for disclosure.

The court first conducted a preliminary examination of the protected confidence evidence to determine if there was a legitimate forensic purpose for the disclosure. This process involved inspecting the counselling notes and examining the counsellor, all of which were conducted in the absence of the public, the parties involved, and their legal representatives. Following this examination, the court had to decide if the disclosure of the protected confidences was necessary for the defendant to make a full defence, and if the disclosure would unduly prejudice the victim's right to confidentiality and the overall effectiveness of counselling services for sexual assault victims.

Upon balancing the competing public interests and considering the factors outlined in the statute, the court concluded that the protected confidences should not be disclosed. The court found that the inspection of the counselling notes did not support an assisted forensic purpose, and that the public interest in preserving the confidentiality of the counselling notes outweighed the public interest in ensuring a fair trial for the defendant. Consequently, the court refused the application for leave to disclose the protected confidences.

The final orders of the court were that the application for leave to disclose the protected confidences be refused. This decision underscores the court's commitment to protecting the confidentiality of counselling notes for victims of sexual assault, while also recognising the importance of ensuring a fair trial for the accused.

Orders

Orders of the court

The application for leave for the disclosure of the protected confidence be refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Preliminary examination of protected confidence evidence(1)If the court is satisfied that the applicant has established a legitimate forensic purpose for seeking the leave, the court must then conduct a preliminary examination of the protected confidence evidence to decide whether leave should be given.(2)For the preliminary examination, the court may––(a)require anyone who has custody or control of a document recording a protected confidence to produce the document to the court for inspection; or(b)require the counsellor concerned or, if the counsellor provides counselling on behalf of an entity, the principal or another representative of the entity––(i)to give the court written answers to any questions; or(ii)to attend the court for oral examination.(3)The court must not order a person to attend for oral examination under subsection (2) (b) (ii) unless the oral examination of the person is necessary for the effective conduct of the preliminary examination.(4)Only a person mentioned in subsection (2) may be ordered to answer questions or be examined under this section.(5)The preliminary examination must be conducted––(a)in the absence of the public and the jury (if any); and(b)in the absence of the parties to the criminal proceeding and their lawyers, except to the extent otherwise decided by the court.(6)Evidence taken at the preliminary examination must not be disclosed to the parties or their lawyers, except to the extent otherwise decided by the court or an appellate court under section 62 (6).(7)A record of the preliminary examination must be made, but must not be made available for public access. Giving of leave to disclose protected confidence(1)After conducting the preliminary examination of the protected confidence evidence, the court may give leave for the disclosure of the protected confidence only if satisfied that, in the circumstances of the case, the public interest in ensuring an accused person in the criminal proceeding is given a fair trial outweighs the public interest in preserving the confidentiality of the protected confidence.(2)To remove any doubt, if the court is satisfied under subsection (1) about part of a document only, it may give leave in relation to that part and refuse leave for the rest of the document.(3)In making a decision under subsection (1), the court must have regard to—(a)the extent to which disclosure of the protected confidence is necessary for an accused person to make a full defence; and(b)the public interest in ensuring that victims of sexual offences receive effective counselling or other treatment; and(c)the extent to which disclosure of protected confidences may dissuade victims of sexual offences from seeking counselling or other treatment or diminish the value of counselling or other treatment; and(d)whether the evidence will have a substantial probative value to a fact in issue and whether other evidence of similar or greater probative value is available about the matters to which the evidence relates; and(e)the likelihood that disclosure of the protected confidence will affect the outcome of the case; and(f)whether disclosure of the protected confidence is sought on the basis of a discriminatory belief or bias; and(g)whether the person to or by whom the protected confidence was made objects to the disclosure of the protected confidence; and(h)the nature and extent of the reasonable expectation of confidentiality for the protected confidence and the potential prejudice to the privacy of anyone, including to the extent to which any interest in confidentiality or privacy has been lessened by the passage of time or the happening of any event since the protected confidence was made.(4)Subsection (3) does not limit the matters to which the court may have regard.(5)Leave under this section may be given subject to restrictions.(6)If the court refuses to give leave, and an appeal is made against the refusal, or a ground of an appeal is the refusal, the appellate court may examine the evidence taken at the preliminary examination under section 61 (Preliminary examination of protected confidence evidence), and may make the orders about the disclosure of the evidence it considers appropriate.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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