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:

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

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.

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…

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.

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Details

Case: [2016] ACTSC 397
Decision Date: 18 November 2016

CaseChat Overview and Summary

In the case of R v Woutersz (No 2), the defendant, Woutersz, appealed against the decision to admit evidence of admissions he made to a psychologist while in prison. The dispute before the court centred on whether these admissions, which were made in a protected environment, should be considered protected confidences under section 126B of the Evidence Act 2011 (ACT). The question was whether the context of the prison environment negated the protection afforded to these confidences.

The legal issues that the court had to address included the interpretation of section 126B of the Evidence Act 2011 (ACT) and the applicability of the protection of confidences in a prison setting. The court needed to determine whether the privilege extended to conversations between the defendant and the psychologist in the custodial environment. The court also had to consider whether the nature of the statements and the relationship between the defendant and the psychologist could be deemed to be of a confidential character as required by the statute.

The court found that the admissions made to the psychologist were not protected by section 126B of the Evidence Act 2011 (ACT) because they were not made in a genuinely confidential context. The court reasoned that the prison environment did not provide the necessary conditions for a protected confidence, as the setting was inherently not confidential. The court concluded that the statements were made in a context where the defendant could reasonably expect that the conversation might be disclosed to authorities, which undermined the confidential nature of the communication. Consequently, the court upheld the admissibility of the statements made to the psychologist.

The final orders of the court were that the admissions made by Woutersz to Ms Pope, the psychologist, were admitted as evidence in the proceedings. The court's decision was grounded in its interpretation of the statutory provision and the specific circumstances of the case, ultimately affirming the trial judge's ruling on the admissibility of the evidence.

Orders

Orders of the court

Admissions to Ms Pope admitted.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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