R v Sigadula

[2024] NSWDC 664

District Court

New South Wales

Medium Neutral Citation:

R v Sigadula [2024] NSWDC 664

Hearing dates:

12 August 2024

Date of orders:

13 August 2024

Decision date:

13 August 2024

Jurisdiction:

Criminal

Before:

Mahony SC DCJ

Decision:

Application for leave to inspect documents produced on subpoena, issued without leave refused.

Legislation Cited:

Criminal Procedure Act 1986, ss 295 – 299D

Cases Cited:

KS v Veitch (No 2) [2012] NSWCCA 266

NAR v PPC1 [2013] NSWCCA 25

PPC v Stylianou [2018] NSWCCA 300

Category:

Procedural rulings

Parties:

Bek Sigadula (the Accused)
Director of Public Prosecutions (the Crown)

Representation:

Counsel:
Mr P Massey (the Accused)
Mr A Lynch (the Crown)

Solicitors:
Mr M Unwin (the Accused)
Mr N Mitchell (the Crown)
Ms R Gilbert (Principal Protected Confider)

File Number(s):

2021/0125352

Publication restriction:

Pursuant to s578A of the Crimes Act 1900 the name of the complainant or any matter which is likely to lead to the identification of the complainant, shall not be published.

JUDGMENT on notice of motion

1. On 12 August 2024 the accused was arraigned and pleaded not guilty to the following two Counts on the Indictment:-

1. On 16 April 2021, at Kearsley in the State of New South Wales, did have sexual intercourse with DP, without her consent, and knowing that DP was not consenting to the sexual intercourse.

2. On 1 May 2021, at Kearsley in the State of New South Wales, did have sexual intercourse with DP, without her consent, and knowing that DP was not consenting to the sexual intercourse.

2. Before empanelment of the jury the accused was given leave to file in court a Notice of Motion seeking the following prayers for relief:-

“(1) The Court grant leave to the Accused pursuant to s298 of the Criminal Procedure Act 1986 (“the CPA”) to compel Wyong Hospital and Maitland Hospital to produce by subpoena all documents as set out in the subpoenae marked as Annexures A and B of the affidavit of Matthew Unwin sworn 12 August 2024 (“the documents”).

(2)    That the Court Grant leave to the accused’s legal representatives to inspect documents.

(3)    Such other order as the Honourable Court deems fit.”

3. The accused relied on the affidavit of his solicitor, Mr Unwin sworn on 12 August 2024 which annexed relevant documents including a copy of the Crown case statement, and witness statements of the complainant dated 3 May 2021, 1 June 2023, 29 June 2023, and 5 August 2024. Also annexed were statements by the complainant’s mother dated 4 June 2023, a statement of Constable G Trudgett dated 8 June 2021 and an Ambulance medical record.

4. The complainant is the estranged wife of the accused and the following chronology of relevant events assists in determining the issues to be resolved on this application:-

• December 2015 the accused and complainant commenced a relationship.

• 26 October 2016 a son, Isaac born.

• 15 May 2018 a son, Ezekial born.

• 24 June 2018 the accused and complainant marry.

• 29 September 2019 a daughter, Elizabeth born.

5. The accused issued subpoenas for production on 2 August 2024 addressed to Wyong Hospital and Maitland Hospital. Each subpoena sought the following documents described in the schedule:-

“(1)    In relation to DK born 29/03/1988:

All notes, medical records, hospital records, Ambulance records, reports, charts, letters and any other written materials or documentation held by any facility of NSW Ambulance, in relation to the duration of any presentation or admission between the dates of 1 January 2019 and 30 June 2021.”

6. In breach of s298 of the CPA, on the assumed basis that such documents may contain protected confidences, the accused did not have leave of the Court to issue the subpoenae compelling production of such documents.

7. Wyong Hospital had produced documents which were forwarded to the representative of the complainant hereafter referred to as the Principal Protected Confider (“PPC”). In opposing the accused’s Notice of Motion, the PPC has submitted that if, after inspecting the documents, the Court is not satisfied of the matters in s299D(1) of the CPA then the subpoena should be set aside and the documents in their entirety returned to the Wyong Hospital.

8. The PPC relied on a number of confidential documents including an affidavit of the PPC as to harm, and a copy of the relevant documents produced by Wyong Hospital which for the purpose of this application I have inspected. The three documents referred to as Annexures 1, 2 and 3 have been marked for identification as MFIs 1, 2 and 3.

9. The accused tendered on the application a copy of a page of handwritten notes of the complainant apparently written in preparation for her first statement to police (Exhibit A). The accused relied on the following entry:-

“Bek called my parents multiple times trying to get them to side with him to say that I have issues and that I am mentally ill. They disagreed. They know me better.”

The accused’s submissions

10. The accused relied on a written outline of submissions which set out the relevant sections of the CPA including the definitions relevantly set out in s296 of the CPA. With respect to the issue of the absence of leave for issuing the subpoena, the accused relied on KS v Veitch (No 2) [2012] NSWCCA 266 at [29] to submit that the correct approach is to disregard that irregularity and consider the documents produced so as to determine whether the accused should have access to them. With respect to the characterisation of the subpoenaed documents, the accused relied on ER v Khan [2015] NSWCCA 230 per Hall J (with whom Hoeben CJ at CL and Button J agreed) at [71]-[82] in which his Honour construed the definition of “counselling communication” in s296 of the CPA and stated that “In determining if a protected confidence exists in relation to the documents produced the Court is entitled to examine the contents of the documents and take into account any evidence concerning or relating to the documents” (at [81]).

11. The accused submitted that in relation to the concept of “harm” referred to in s296(4) the term should be confined to harm suffered as a result of the alleged offence rather than a broader construction of other harm not related to the offence.

12. The accused submitted that the Crown was alleging the accused engaged in controlling behaviour which included conduct in which the accused had for no reason contacted the Ambulance Service and police on an occasion and stated that the complainant was mentally ill. This amounted to “gaslighting” the complainant.

13. The accused made the following submissions on why leave should be granted:-

“14. Not all documents of a hospital stay would amount to counselling communication eg.

History given by the complainant on presentation at the hospital.

Records of observations of the complainant while in hospital.

Records of the ambulance including what the complainant said to them.

If the complainant was presented to the hospital by police what the police told the

Observations as to the condition of the complainant. (sic)

15.    There may be documents that evidence a history taken by the psychiatrist and a diagnosis it is submitted that these are also not counselling communications.

16. If your Honour is against me on it is submitted that the matters to determine on whether to grant leave are contained in s299D of the Act.

17. It is submitted that bearing in mind the gaslighting allegation et al the records as to whether the complainant has an ongoing mental illness and was in hospital for reasons other than the desperation to leave the accused have substantial probative value.

18. Other documents regarding these issues are not available the public interest in preserving the confidential protected confidence is substantially outweighed by the public interested in admitting into evidence these documents.”

14. In response to the written outline of submissions of the PPC, the accused challenged the construction relied on by the PPC as to the broad range of treating professionals who interacted with the complainant at Wyong Hospital including registered nurses, doctors, registrars, social workers, psychologists and psychiatrists who could be inferred to have the training, study or experience relevant to the process of counselling persons who have suffered harm. It was submitted it was necessary to assess each document produced to determine if it was a record could fall into the category of counselling so as to assess whether it is a protected communication.

15. The accused relied on NAR v PPC1 [2013] NSWCCA 25 per Beech-Jones J at [22] as to the broad definition of harm as it appears in s296(4)(a) and (5) and submitted there was no binding authority as to whether a broad approach should be preferred. Adopting the narrow construction here, the communications were not privileged, and the accused should have access to them. All the documents subpoenaed related to matters before the alleged offences and therefore it was submitted do not attract sexual assault privilege.

16. In the event that submission was not accepted, counsel for the accused submitted that the evidence would have substantial probative value for the following reasons:-

1. In her statement of 3 May 2021 at [33] the complainant referred to trying to kill herself in June 2020 because she was feeling trapped, and the accused was “making her life hell”. The complainant did not state that this arose from a mental illness.

2. Exhibit A was reflected in her statement of 1 June 2021 when she stated that the accused contacted her parents to say she was mentally ill and they disagreed.

3. In her statement the complainant’s mother stated “throughout the relationship he has tried to make her out to be mentally unstable. He openly speaks of D being suicidal and suffers from mental illnesses”.

4. In the same statement the complainant’s mother stated that in May 2020 the complainant rang her crying and stated that she feared what the accused would do to her children.

5. She also recounted the accused calling police to report the complainant taking off with the children when the complainant was travelling to Queensland with them. Those events occurred in May 2020 and the complainant was hospitalised at the Wyong Hospital psychiatric ward in June 2020.

17. The applicant submitted that the evidence will have substantial probative value for the following reasons:-

“(a)    It demonstrated that the complainant has a mental illness which goes to credit.

(b)    It will explain conduct of the accused regarding the complaint as arising from a legitimate concern and not controlling behaviour.

(c)   It explains that the calling of Ambulances and police arise from a legitimate concern for her mental state and not controlling behaviour.

(d)    It may explain some of the conduct and perceptions of the complaint with respect to the accused.

(e)    It may explain conduct of the accused that arise from her mental illness and not some nefarious reason.”

18. In his oral his submissions counsel for the accused submitted that “if the Crown had not made it part of their case and the question of her mental illness, we would not be in this process now.” The Crown case, it was submitted, was of a “classic gaslight where the accused as part of his controlling behaviour, makes everyone in the world, including the complainant, think she’s got a mental illness when she doesn’t”. Thus it was submitted that the real reasons the complainant was in hospital were of very significant probative value. The complainant does not admit a mental illness but rather blames the accused for her admission to Wyong Hospital in June 2020. Thus this goes to an issue of the credit of the complainant.

19. The accused also submitted that the evidence goes someway to explain his concerns for the complainant’s mental illness and would demonstrate there was nothing nefarious about his conduct and his concerns for the complainant.

Submissions for the PPC

20. The solicitor for the PPC also relied on a written outline of submissions in which it was submitted the Court had a discretion to disregard irregularity of the accused failing to obtain leave to issue the subpoena referring to Veitch (No 2) at [80]. It was further submitted that if the Court is satisfied of the matters in s299D(1) then leave to issue should be granted. The question of access to the documents would then need to be considered, relying on PPC v Stylianou [2018] NSWCCA 300. At that point it would be necessary for the Court to determine which of the documents are privileged, and which have substantial probative value.

21. The written outline referred to the extended definition of a “protected confidence” in s295 of the CPA and noted that the definition relies heavily on the definition of “counsellor”. On the basis of the extended definition it was submitted that all communications between those employed at Wyong Hospital and the complainant are privileged, an approach taken in other cases in this Court and in NAR v PPC1 [2013] NSWCCA 25 by the Court of Criminal Appeal. Thus the PPC submitted that the majority of documents produced by the Wyong Hospital are privileged and for convenience attached an index (MFI 1) which set out the PPC’s characterisation of each document.

22. In respect to the proper construction of “harm” it was submitted that the definition in s295 included stress, and emotional or psychological harm. Further, s296 provided that a counselling communication is a protected confidence even if it was made before the relevant sexual assault offence, as is the case here. It was submitted the Court in KS v Veitch (No 2) accepted the broader construction of harm.

23. In relation to the question of substantial probative value of the evidence the PPC referred to the accused’s submission that the Crown will allege he was a controlling person who had no reason to contact the Ambulance and police to say that the complainant was mentally ill and that therefore “records as to whether the complainant has an ongoing mental illness” have substantial probative value. The PPC submitted that the issue is not whether the PPC has an ongoing mental illness, but whether she was so unwell on 6 March 2021 that it was necessary for the defendant to call an Ambulance. The PPC has not denied having mental health problems and has acknowledged making a suicide attempt in June 2020. She also acknowledged episodes of anxiety and depression during her 6-year relationship with the accused.

24. The records produced by Wyong Hospital relate to treatment in February and June 2020 and are therefore not close in time to the allegations of sexual assault in March 2021. The PPC submitted that the records relating to her treatment in 2020 could not shed any light on whether it was appropriate for the defendant to call an Ambulance in March 2021. For that reason it was submitted the Wyong Hospital records do not have substantial probative value.

25. Section 299D(1)(b) provides that the Court cannot grant leave unless it is satisfied that “other documents or evidence concerning the matters to which the protected confidence relates are not available.” In this case there was other evidence available in the Ambulance electronic medical record which was more probative to the issue raised by the defendant than the Wyong Hospital records because of its temporal connection.

26. Further the public interest test in s299D(1)(c) meant that given the confidential statement of harm, the public interest in preserving her confidentiality and protecting her from harm is not substantially outweighed by the public interest in admitting the documents into evidence.

27. The PPC therefore submitted that the application for leave should be refused and the documents returned to Wyong Hospital.

28. The solicitor for the PPC in her oral submissions rehearsed her submissions regarding the statutory definition of protected confidence as a counselling communication. It was submitted that such communications prior to the commission of the alleged offences are clearly protected by s296 of the CPA.

29. Ms Gilbert also addressed the five reasons submitted by the accused going to substantial probative value (set out in paragraph 17 above). She submitted that ”a mental illness only goes to credit if it is actually relevant to credit, suggesting that only a mental illness that involves an inability to tell fact from fiction, or delusions or lying is relevant to credit.” It was submitted the accused would have to show a particular reason for mental illness to be relevant to her credit. It was submitted that communications between the complainant and medical professionals could not possibly explain the conduct of the accused. Rather what was relevant here was the accused’s belief about the complainant’s mental health and thus it was his state of mind that was the issue, and the protected communications could not have affected his behaviour. Finally, while some records may explain some of the conduct and perceptions of the complainant with respect to the accused, this was “insufficiently specific”. It may be a fact in issue that the accused called the Ambulance out of legitimate concern for the complainant’s mental health however that could not be assisted by what is contained in the medical records.

The relevant legislation

30. Section 295 of the CPA provides definitions of the following terms:-

“harm includes actual physical bodily harm, financial loss, stress or shock, damage to reputation or emotional or psychological harm (such as shame, humiliation and fear).

principal protected confider means the victim or alleged victim of a sexual assault offence by, to or about whom a protected confidence is made.

1. Document recording a protected confidence In this Division, a reference to a document recording a protected confidence—

(a)     is a reference to any part of the document that records a protected confidence or any report, observation, opinion, advice, recommendation or other matter that relates to the protected confidence made by a protected confider, and

(b)     includes a reference to any copy, reproduction or duplicate of that part of the document.

296 What is a protected confidence?

(1) In this Division—

protected confidence means a counselling communication that is made by, to or about a victim or alleged victim of a sexual assault offence.

(2) A counselling communication is a protected confidence for the purposes of this Division even if it—

(a) was made before the acts constituting the relevant sexual assault offence occurred or are alleged to have occurred, or

(b) was not made in connection with a sexual assault offence or alleged sexual assault offence or any condition arising from a sexual assault offence or alleged sexual assault offence.

(3) For the purposes of this section, a communication may be made in confidence even if it is made in the presence of a third party if the third party is present to facilitate communication or to otherwise further the counselling process.

(4) In this section—

counselling communication means a communication—

(a) made in confidence by a person (the counselled person) to another person (the counsellor) who is counselling the person in relation to any harm the person may have suffered, or

(b) made in confidence to or about the counselled person by the counsellor in the course of that counselling, or

(c) made in confidence about the counselled person by a counsellor or a parent, carer or other supportive person who is present to facilitate communication between the counselled person and the counsellor or to otherwise further the counselling process, or

(d) made in confidence by or to the counsellor, by or to another counsellor or by or to a person who is counselling, or has at any time counselled, the person.

(5) For the purposes of this section, a person counsels another person if—

(a) the person has undertaken training or study or has experience that is relevant to the process of counselling persons who have suffered harm, and

(b) the person—

(i) listens to and gives verbal or other support or encouragement to the other person, or

(ii) advises, gives therapy to or treats the other person,

whether or not for fee or reward.

297 Protected confidences—preliminary criminal proceedings

(1) A person cannot seek to compel (whether by subpoena or any other procedure) any other person to produce a document recording a protected confidence in, or in connection with, any preliminary criminal proceedings.

(2) A document recording a protected confidence cannot be produced in, or in connection with, any preliminary criminal proceedings.

(3) Evidence cannot be adduced in any preliminary criminal proceedings if it would disclose a protected confidence or the contents of a document recording a protected confidence.

298 Protected confidences—criminal proceedings

(1) Except with the leave of the court, a person cannot seek to compel (whether by subpoena or any other procedure) any other person to produce a document recording a protected confidence in, or in connection with, any criminal proceedings.

(2) Except with the leave of the court, a document recording a protected confidence cannot be produced in, or in connection with, any criminal proceedings.

(3) Except with the leave of the court, evidence cannot be adduced in any criminal proceedings if it would disclose a protected confidence or the contents of a document recording a protected confidence.”

299D Determining whether to grant leave

(1) The court cannot grant an application for leave under this Division unless the court is satisfied that—

(a) the document or evidence will, either by itself or having regard to other documents or evidence produced or adduced or to be produced or adduced by the party seeking to produce or adduce the document or evidence, have substantial probative value, and

(b) other documents or evidence concerning the matters to which the protected confidence relates are not available, and

(c) the public interest in preserving the confidentiality of protected confidences and protecting the principal protected confider from harm is substantially outweighed by the public interest in admitting into evidence information or the contents of a document of substantial probative value.

(2) Without limiting the matters that the court may take into account for the purposes of determining the public interest in preserving the confidentiality of protected confidences and protecting the principal protected confider from harm, the court must take into account the following—

(a) the need to encourage victims of sexual offences to seek counselling,

(b) that the effectiveness of counselling is likely to be dependent on the maintenance of the confidentiality of the counselling relationship,

(c) the public interest in ensuring that victims of sexual offences receive effective counselling,

(d) that the disclosure of the protected confidence is likely to damage or undermine the relationship between the counsellor and the counselled person,

(e) whether disclosure of the protected confidence is sought on the basis of a discriminatory belief or bias,

(f) that the adducing of the evidence is likely to infringe a reasonable expectation of privacy.

(3) For the purposes of determining an application for leave under this Division, the court may permit a confidential statement to be made to it by or on behalf of the principal protected confider by affidavit specifying the harm the confider is likely to suffer if the application for leave is granted.

(4) A court must not disclose or make available to a party (other than the principal protected confider) any confidential statement made to the court under this section by or on behalf of the principal protected confider.

(5) The court must state its reasons for granting or refusing to grant an application for leave under this Division.

(6) If there is a jury, the court is to hear and determine any application for leave under this Division in the absence of the jury.

Determination

31. I have inspected and carefully considered the documents produced by Wyong Hospital concerning two admissions of the complainant, the first between 17 and 18 February 2020 and second between 17 June 2020 and 2 July 2020. I acknowledge that the accused has not had access to the documents so as to challenge the characterisation of them by the PPC. In relation to each of the documents relating to the complainant’s first admission in time as set out in MFI 1 having independently reviewed the documents I agree that each document records a protected confidence pursuant to s296 of the CPA and I further agree that in respect of each no finding could be made that they had substantial probative value to the issues in this trial.

32. In relation to the second admission the documents relating to the discharge of the complainant from the Wyong Hospital on 2 July 2020 also record protected confidences pursuant to s296(4)(a) and (b) and s295 and all relevant documents in my view do not have substantial probative value.

33. In PPC v Stylianou, supra, Macfarlan JA said at [21]:-

“It is clear that s 299B(3) circumscribes the Court’s power to grant access to documents recording protected confidences: the Court may not grant such access “unless” one of the conditions stated in that subsection is satisfied. The subsection does not however state, either expressly or impliedly, that the documents must be made available to the parties if one of those stated conditions is satisfied. Instead, it simply assumes the existence of a power of the Court to grant or withhold access and engrafts a stricture on the exercise of that power. Contrary to the respondent’s submission, fulfilment of one of the alternative conditions in s299B(3) is a necessary, but not a sufficient requirement, for entitlement to an order for access.”

34. Having examined the documents I have arrived at the following conclusions having regard to the matters set out in s299D of the CPA:-

1. The relevant documents identified as “protected confidences” do not have substantial probative value.

2. There are other documents evidencing some of the matters referred to (for example the Ambulance Service document referred to above), and

3. The public interest in preserving the confidentiality of the protected confidences and protecting the PPC from harm is substantially outweighed by the public interest in admitting into evidence the contents of the various documents.

35. The issue of credit identified by the applicant can be ventilated at trial without recourse to the subpoenaed documents given the PPC’s admission referred to above that she has not denied having mental health problems and has acknowledged making a suicide attempt in June 2020 – see the complainant’s statements dated 3 May 2021 at [33] and statement dated 5 August 2024 at [6]. The PPC further submitted that the defendant having been in relationship with the PPC was for 6 years aware that she had experienced episodes of anxiety and depression (see PPC’s submissions at [20]).

36. That being the case the accused is not prevented from challenging the “gaslighting” assertion being put on behalf of the Crown. Further, I accept the PPC’s submission that the Wyong Hospital records are not close in time to 6 March 2021 when the Ambulance was called by the accused. The medical record from the Ambulance Service noted that following assessment the incident concerned “more of a relationship and social problem, not a medical/mental health problem”. For these reasons I accept the PPC’s submission that the records do not have substantial probative value.

37. I have taken into account in coming to those conclusions the matters in s299D(2) and in particular that by adducing the evidence the PPC’s reasonable expectation of privacy would likely be infringed and I accept that the confider is likely to suffer harm as set out in her confidential affidavit.

Orders

38. I make the following orders:-

1. I refuse to grant leave pursuant to s298 of the CPA to compel the Wyong Hospital to produce the documents referred to in the affidavit of Mr Unwin sworn on 12 August 2024.

2. I refuse to grant leave to the accused’s legal representatives to inspect any such documents.

3. I dismiss the accused’s Notice of Motion filed on 12 August 2024, as it relates to the documents produced by Wyong Hospital.

4. I order that the documents be returned to the Wyong Hospital.

5. I direct that the confidential annexures (MFI 1, 2 and 3) relied on by the PPC be returned to the solicitor for the PPC together with copies thereof.

Decision last updated: 14 April 2025