R v Woutersz (No 2)

[2016] ACTSC 397

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Woutersz (No 2)

Citation:

[2016] ACTSC 397

Hearing Date(s):

7 November 2016–20 December 2016

DecisionDate:

18 November 2016

Before:

Murrell CJ

Decision:

Admissions to Ms Pope admitted.

Catchwords:

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

Legislation Cited:

Evidence Act 2011 (ACT) s 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. This is an objection under s 126B of the Evidence Act 2011 (ACT) to the admission of a statement to Ms Pope, a psychologist, at the prison on 10 November 2014. The whole of the interaction is summarised in the notes that are part of voir dire exhibit 1.

Facts surrounding the admissions

1. First of all, it is important to consider the chronology of events concerning Ms Pope’s interaction with the accused.  There is no dispute that Ms Pope is a qualified psychologist, who would be bound by confidence in relation to relevant professional interactions with patients or clients.  However, in this case, the chronology appears to be that Ms Pope had been present at an assessment by Dr Keightley, psychiatrist of the accused, at the prison on the 20 October 2014.  The accused was transferred to the Canberra Hospital Mental Health Unit and then returned to the prison in early November 2014.  It would appear that the first interaction between Ms Pope and the accused, after the 20 October, was on 10 November 2014, when Ms Pope spoke to the accused for the stated purpose of reviewing her risk in the CSU area—that apparently being an area of higher care.  At that stage, the accused was under close observation in the CSU and the issue was whether she should be transferred to a different area within the prison.

1. In that context, Ms Pope spoke to senior custodial staff before commencing the review of the accused’s placement.  When Ms Pope spoke to the accused, the accused asked for a medication review and in that context, made the admission upon which the prosecution seeks to rely.  She stated that she suspected that the aches and pains for which she was seeking medication were the result of ceasing ice and cannabis use, being the first time she had been abstinent from drugs.  After making this reference to the need for a medication review, the accused then went on to deal with several other logistical problems that she was facing.  One involved assistance with Centrelink and banking and another involved making a telephone call to her sister.  It would appear that at the end of this part of the interaction, Ms Pope moved to a different type of interaction which is described in the notes as “beginning of clinical management and recovery plan”.

1. At this point Ms Pope removed her risk assessment “hat” and put on her treating psychologist “hat” and encouraged the accused to communicate with her openly and honestly. Ms Pope explained to the accused the things that she would and would not be able to help her with.  In her evidence, Ms Pope said that she usually cautioned her clients that there were limits to the confidentiality of the psychologist–client relationship arising from the fact that notes would be recorded in an electronic system that was accessible to others and that in a prison environment there would be a need to share information with Corrective Services.  It may be that this caution was given to the accused, although the note at the foot of page 1 and top of page 2 recorded on the 10 to 12 November 2014 does not clearly articulate a caution in the terms in which Ms Pope said she would normally give a caution.  In any event, this is all irrelevant because the admission had been made before that point was reached. 

Was the admission a protected confidence?

1. The first issue is whether the statement about drugs was protected confidence.  In my view it was not because at the point when it was said, the relationship of psychologist–client had not really started.  I cannot see that there was an implied obligation on the part of the psychologist not to disclose what was said. 

Should the evidence be admitted?

1. Assuming for the moment that the disclosure was a protected confidence, I would nevertheless admit it under s 126B taking in to account the matters under s 126B(4). There has been no argument under s 126B(3) so I have proceeded on the basis that there is no argument that the likely harm to the accused would outweigh the desirability of the evidence being given. It is a matter of whether the general discretion would result in exclusion of the evidence, considering the matters set out in s 126B(4) and any other relevant matters. As far as the probative value and importance of the evidence are concerned, there is significant probative value and importance to the issue of the aetiology of the accused’s mental impairment at the relevant time because in relation to that assessment it may be important to identify the type of drug that was being used by the accused prior to the incident on the 17 October and when the drug “ice” was last used.

1. The offence charged is very serious and the defence to which the evidence would go is critical to the outcome of the proceedings. There is some other evidence about this general subject matter, but the evidence comes in bits and pieces and all the pieces may become important to the overall picture. Other considerations that seem to be of significance under s 126B(4) are the public interest considerations, or that they should be considered in any event. In the context that even if there was the circumstances should be characterised as giving rise to a protected confidence, it is a borderline situation, the public interest considerations assume less importance. In other words, if the communication was a protected confidence, it was barely a protected confidence. It was not clearly a protected confidence, such as would be the case in relation to treatment communications between the psychologist and the accused.

Decision

1. As I have mentioned, it is unfortunate that the psychologist seems to have adopted a variety of roles, some of which were clearly treatment roles and others of which were not treatment roles; but it would appear that at the point when the disclosure was made, the psychologist had not clearly assumed a treatment role.  For that reason, expectations in relation to confidentiality would be either lower or non-existent and there is no strong public policy or public interest reason for excluding the material. The material will be admitted. 

I certify that the preceding eight [8] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell.

Associate:

Date: