R v Sirl
[2019] ACTSC 225
•21 August 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Sirl |
Citation: | [2019] ACTSC 225 |
Hearing Date: | 20 August 2019 |
DecisionDate: | 21 August 2019 |
Before: | Crowe AJ |
Decision: | See [24] |
Catchwords: | EVIDENCE – Subpoenas – application by the Crown for protected confidences to be disclosed – where legitimate forensic purpose identified – where preliminary examination conducted |
Legislation Cited: | Evidence Act 2011 (ACT) s 103 Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 52, 79, 79A, 79D, 79F, 79G, 79H |
Cases Cited: | R v NS [2016] ACTSC 346; 315 FLR 261 R v Chute [2019] ACTSC 19712 ACTLR 64 |
Parties: | The Queen (Crown/Applicant) Glen Robert Sirl (Accused/Respondent) |
Representation: | Counsel T Hickey (Crown/Applicant) K Musgrove (Accused/Respondent) |
| Solicitors ACT Director of Public Prosecutions (Crown/Applicant) McKenna Taylor (Accused/Respondent) | |
File Number: | SCC 19 of 2019 |
Crowe AJ:
The accused is charged with one count of engaging in sexual intercourse without consent and one count of recklessly inflicting grievous bodily harm. I will refer to the complainant in relation to these matters as “C”.
It is alleged that C attended at the accused’s home for the purpose of buying a small amount of marijuana. While she was there the accused, on a pretext, is said to have lured her to his bedroom where he pushed her onto his bed and removed her clothing. The complainant alleges that he then had sexual intercourse without her consent, including forcing foreign objects into her vagina.
After this had ceased C noticed that she was bleeding from the vagina. She tried various means to staunch the bleeding without success. She returned to her home where these efforts continued. Eventually she called an ambulance. This call was made at 10:26am on 9 August 2018.
C was conveyed to the Canberra Hospital by ambulance. During her interaction with the ambulance officers C told them certain things about how she came to be injured. The Crown proposes relying on the evidence of one of those officers at the trial (which is listed for hearing on 2 September 2019) as to the complaint made by C.
Once admitted to hospital she was seen by medical staff who found that she had internal injuries which required urgent operative treatment. Before she was taken to theatre C spoke to a police officer. C gave the officer some details about the alleged assaults. The Crown intends to rely upon the officer’s evidence of that conversation.
On 10 August 2018 Dr J Van Diemen, a Forensic Medial Officer, attended on C.
Dr Van Diemen obtained a history and also performed a physical examination of C. She subsequently prepared a report dated 4 February 2019. The Crown intends to rely upon the evidence of Dr Van Diemen.
Finally, on 25 October 2018, C provided a detailed statement to police. This was made by way of a recorded evidence in chief interview pursuant to s 51 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the Act). This is admissible as C’s evidence in chief at the trial (s 52 of the Act).
On 5 August 2019 the solicitor acting for the accused caused a subpoena to produce documents to be issued to ACT Health. This sought production of documents relating to the treatment of C during her admission on 9 August 2018. ACT Health subsequently provided the Canberra Hospital file relating to that admission to the Court.
On 15 August 2019 the Registrar ordered that the DPP have first access to the file until 22 August 2019, and the accused representatives have access thereafter.
I am informed from the bar table that Mr Hiscock, who has the conduct of the prosecution for the Crown, inspected the file and realised that entries on four pages might fall into the description of protected confidence evidence under Division 4.4.3 of the Act.
In response, the Crown, by Application in Proceeding dated 20 August 2019, applied for an order that the pages containing those entries be disclosed to the parties. The application was supported by the affidavit of Stephanie Deguara, affirmed on 20 August 2019.
I heard the application on 20 August 2019. Mr Hiscock appeared for the Crown and Ms
Musgrove appeared for the accused. I admitted the affidavit into evidence on the application as Exhibit “P1”.
Mr Hiscock informed me that the entries in question had been made by a social worker who had spoken to C while she was in hospital recuperating after the surgical repair of her injuries. The entries were said to record matters of history. Given the width of the definitions in ss 79 and 79A of the Act I was satisfied that the entries were probably protected confidences.
Section 79D relevantly provides:
79DGeneral immunity for protected confidences
(1)This section applies in relation to a proceeding.
(2)A protected confidence must not be disclosed in, or for the purposes of, the proceeding unless the court dealing with the proceeding gives leave for the disclosure.
In deciding whether to permit disclosure there is a threshold test to be satisfied. It arises under s 79F which is in these terms:
79FThreshold test – legitimate forensic purpose
(1)The court must refuse the leave sought under section 79E if not satisfied that the applicant has established a legitimate forensic purpose for seeking the leave.
(2)To establish a legitimate forensic purpose, the applicant must—
(a)identify a legitimate forensic purpose for seeking the leave; and
(b)satisfy the court that there is an arguable case that the evidence in relation to which the leave is sought would materially assist the applicant’s case in the proceeding.
(3)The court must decide whether or not to refuse the application under this section before it conducts a preliminary examination of the protected confidence evidence under section 79G.
Counsel both submitted that I should be satisfied that the applicant had a legitimate forensic purpose in this case. One of the key issues in the case is the reliability of C’s evidence regarding what occurred at the time of the alleged assaults. It was said that there were inconsistencies in the histories referred to in paragraphs [5] to [7] above and that a further record of complaint made soon after the alleged assaults could be vital to either strengthen or damage C’s credibility.
Adopting the analysis of Mossop J in R v Chute [2019] ACTSC 197 at [9]-[19], I found that there was a reasonable possibility in light of the known facts that the entries would materially assist the applicant’s case in the proceedings. I thus concluded that it was not necessary for me to refuse the leave sought as required by s 79F. I note that I would have come to the same conclusion if the accused had been the applicant.
Having made that finding it became necessary to consider s 79G, which provides:
79GPreliminary 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 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 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 79H (6).
(7)A record of the preliminary examination must be made, but must not be made available for public access.
I did not see the need to conduct an oral examination. I have read the relevant entries which appear at pages 29, 30, 33 and 34 of the hospital file. I have taken copies of those pages which will be kept on the court file in an envelope marked “not for public access” as a record of the preliminary examination.
In deciding whether to grant leave for the disclosure of the entries it is necessary to consider the matters identified in s 79H. That section provides:
79HGiving 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—
(a)for a civil proceeding—the public interest in ensuring the proceeding is conducted fairly outweighs the public interest in preserving the confidentiality of the protected confidence; or
(b)for a criminal proceeding—the public interest in ensuring an accused person in the 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)for a criminal proceeding—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 conditions.
Mr Hiscock and Ms Musgrove supported the granting of leave. Mr Hiscock addressed each of the matters required to be taken into account under s 79H(3). In relation to paragraphs (a) and (d) he submitted that access to the entries could be important to the accused’s defence, although he pointed out that the defence would be faced with a hurdle under s 103 of the Evidence Act 2011 (ACT) in relation to any attack on C’s credit. In relation to paragraphs (b) and (c) he pointed out that this was not a case where the complainant had sought out counselling as a means of treating her reaction to the assaults. Rather, the counselling was incidental to the medical treatment she was receiving in the hospital. Ms Musgrove also emphasised this point. As to paragraph (e), it was submitted that the history in the entries was just one of several. In that context it was unlikely to be determinative. Paragraph (f) was not relevant. In relation to paragraph (g), I granted leave to the Crown to inform the Court by email of the attitude of the complainant. The Court has been advised that C has no objection to disclosure of the entries (I have admitted the email to that effect into evidence as Exhibit “P2”).
Mr Hiscock submitted that consideration of (h) should be conditioned by C’s attitude to the disclosure of the entries.
In R v NS [2016] ACTSC 346; 315 FLR 261 Burns J said at [36] when referring to
s 61(2)(b) (this section being identical to s 79H(1)(b)):
The weighing exercise required by s 62(1)(b) requires the court to consider the public interest in ensuring that an accused person is given a fair trial. The right to a fair trial is a fundamental right recognised by the common law, and guaranteed by s 21 of the Human Rights Act 2004 (ACT). A fair trial would ordinarily be one where the accused has access to, and can use, all relevant evidence. The provisions of the Act governing the adducing of evidence of restricted confidences clearly provide a restriction upon the ability of an accused person to access and use otherwise relevant evidence, effecting a restriction on those conditions which would ordinarily be thought necessary for a fair trial. Such a restriction should be interpreted as extending no further than the language the Act requires; see Momcilovic v The Queen [2011] HCA 34; 245 CLR 1 at [43].
In the particular circumstances of this case I conclude that the public interest in seeing that the accused receives a fair trial outweighs the public interest in preserving the confidentiality of the protected confidence. The evidence of a complaint close in time to the alleged offences in circumstances where there is a real issue as to the consistency of other complaints is of particular importance. I am satisfied that the entries in question are important to the right of the accused to a fair trial. Against that the communications in question were made in the course of what appear to have been routine social work attendances at the hospital. I see little prospect that their disclosure would discourage victims of sexual assault from seeking counselling or other treatment, or interfere with the provision of such services.
Accordingly, the Orders of the Court are as follows:
(1) Leave is granted for the disclosure of pages 29, 30, 33 and 34 of the hospital file, including any record of protected confidences contained in those pages, for the purposes of the current proceeding.
| I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Crowe Associate: Date: 21 August 2019 |