R v Woutersz (No 1)

[2016] ACTSC 396

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Woutersz (No 1)

Citation:

[2016] ACTSC 396

Hearing Dates:

7 November 2016–20 December 2016

DecisionDate:

18 November 2016

Before:

Murrell CJ

Decision:

Admissions to Mr Amirthanathan admitted.

Catchwords:

EVIDENCE – ADMISSIBILITY AND RELEVANCE – Protected confidences – s 126B Evidence Act 2011 (ACT) – admissions made to occupational therapist in prison environment – whether statements were protected confidences – admissions admitted

Legislation Cited:

Evidence Act 2011 (ACT) ss 126A, 126B

Parties:

The Queen (Crown)

Gabriella Woutersz (Accused)

Representation:

Counsel

Mr S Drumgold (Crown)

Mr B Collaery (Accused)

Solicitors

ACT Director of Public Prosecutions (Crown)

Collaery Lawyers (Accused)

File Number:

SCC 73 of 2015

MURRELL CJ:

1. The accused, Gabriella Woutersz, was indicted to stand trial for the murder of her mother, Norma Cheryl Woutersz. During the trial, the defence made an application to exclude statements made by the accused to Mr Amirthanathan, an occupational therapist working at the Alexander Maconochie Centre (AMC), on the basis that the statements were a protected confidence falling within the exclusion in s 126B of the Evidence Act 2011 (ACT) (Evidence Act).

Facts surrounding the making of the statements

1. When the accused returned from the Canberra Hospital mental health unit to the AMC on 6 November 2014, she underwent an intake procedure, part of which involved a health assessment by Mr Amirthanathan, an occupational therapist, and Ms Dean, a social work student.

1. In the course of that health assessment, observations were made about the accused's speech, thought form and content, perception and cognition, and a risk assessment was developed.  A clinical impression was recorded and then a plan was noted which included both the degree of observation that it was recommended be given to the accused (presumably by Corrective Services officers) and the fact that she required mental health follow up and there should be "a referral to medical team".  It seems that the purpose of this assessment had a dual purpose: one was for Corrective Services’ purposes, to determine the way in which the accused should be held and the degree of observation required to protect her from self-harm; and second, from the perspective of protecting her interests, to inquire whether a health follow-up was required for both mental health and any other relevant health issues.  The plan that was developed addressed those dual purposes.

Was the statement a protected confidence?

1. There is a preliminary question about whether, in those circumstances, what was said was a protected confidence within the meaning of s 126A of the Evidence Act. It is not entirely clear that it was such a confidence. It has been submitted that Mr Amirthanathan was acting a "professional capacity" as required by s 126A of the definition on the basis that, while he was acting as an occupational therapist, he was part of a medical team feeding material to qualified health care practitioners who might later become involved in treating the accused. That is a questionable argument, but I will assume for the moment that Mr Amirthanathan was acting in a professional capacity.

1. Then there is the question under part B of the definition, whether confidentiality should be inferred from the nature of the relationship (assuming that there is no legal requirement to observe confidentiality).

1. The inference of confidentiality is, in my view, debateable, but I am prepared to assume for the sake of argument, that confidentiality to some degree should be assumed to a sufficient degree to satisfy the definition of a protected confidence. 

Should the statements be excluded?

1. It then becomes necessary to consider whether the evidence may be excluded under s 126B and whether it should be excluded under s 126B, or whether it must be excluded under s 126B(3). No particular personal harm to the accused has been identified and no strong argument has been advanced that the balancing exercise under s 126B(3) would favour the accused and require the Court to exclude the evidence.

1. Therefore, focussing on the discretionary considerations in s 126B(4), a number of those considerations favour the admission of the evidence. Evidence about prior drug use is probative and potentially important. This is a serious charge and the defence of mental impairment is critical to the outcome; the evidence goes to that defence. I have already observed that there is other evidence along similar lines that is available; the accused’s prior use of drugs is not dependent upon this evidence.

1. There is always the public interest in preserving confidentiality of protected confidences, but, it seems to me that the circumstances in which any protected confidence is given is an important consideration when determining the level of the public interest.  In the case of information gained at an intake process, albeit at least partly for health care purposes, there is a considerably lower public interest than for example, the public interest in preserving the confidentiality of communications made to a psychiatrist, overwhelmingly for the purpose of treatment.  I have regard to the circumstances in which this communication was made—that is, at an intake procedure—the identity of the recipients (people who were not themselves going to provide health care treatment but who were going to “feed” information on to people who might provide treatment) and the fact that the intake process was for a dual purpose, one of which was a Corrective Services purpose, as opposed to a health purpose. 

1. The Corrective Service purpose was to determine observation requirements and risks of self-harm. It is my view that I should not make a direction that the evidence not be adduced. The prosecution will be permitted to adduce the evidence under s 126B.

I certify that the preceding ten [10] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell.

Associate:

Date: