Re R v C - [2015] SASCFC 32

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Application)
R v C, RE
[2015] SASCFC 32
Reasons for Decision of The Honourable Justice Parker
27 March 2015
CRIMINAL LAW - PROCEDURE - DISCLOSURE OBLIGATIONS
PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - PRODUCTION AND INSPECTION - GROUNDS FOR RESISTING PRODUCTION - OTHER GROUNDS
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - FRESH EVIDENCE - OTHER MATTERS
Application to inspect and adduce as evidence certain documents produced to the Court upon subpoena in respect of an application for permission to appeal against conviction. The applicant was convicted by a District Court jury of persistent sexual exploitation of a child. In civil proceedings against the applicant, the victim disclosed documents indicating there may have been other perpetrators of sexual abuse during the same period which had not been reported to the police or prosecutors. The applicant subpoenaed the disclosed documents and further documents.
Whether the further documents disclose protected communications subject to public interest immunity under ss 67D and 67E of the Evidence Act 1929. Whether permission should be granted to adduce the documents as evidence under s 67F of the Evidence Act 1929. Whether permission should be granted to inspect the documents prior to the hearing of the application for permission to appeal.
Held (Parker J):
The further documents are protected by public interest immunity under s 67E. In the circumstances, the public interest in preventing a miscarriage of justice that might arise from suppression of the evidence outweighs the public interest in preserving the confidentiality of protected communications. Therefore, permission to adduce the documents as evidence is granted under s 67F. Permission to inspect the documents is not granted as that would be inconsistent with a purposive interpretation of the legislation.
Evidence Act 1929 s 67D, s 67E, s 67F; Children's Protection Act 1993 s 13, referred to.
C, RE v O, CL [2014] SASC 83; R v R, GJ (2009) 105 SASR 506; Adelaide Brighton Cement v South Australia (1990) 75 SASR 209; R v Basha (1989) 39 A Crim R 337; Northern Territory v GPAO (1999) 196 CLR 553, considered.

R v C, RE
[2015] SASCFC 32

PARKER J: The applicant has sought permission to appeal against his conviction by a District Court jury of persistent sexual exploitation of a child. In support of that application he has sought permission to inspect and adduce as evidence certain documents produced to the Court upon subpoena. This judgment deals with those issues.
The applicant contends that the relevant documents contain information casting reasonable doubt upon his conviction. A question has arisen as to whether the documents are protected communications under Division 9 of Part 7 of the Evidence Act 1929 and, if so, whether permission should be granted to inspect the documents and adduce them as evidence.
Division 9 provides:
67D—Interpretation
In this Division—
committal proceedings means proceedings for the preliminary examination of a charge of an indictable offence;
counsellor or therapist means a person whose profession or work consists of, or includes, providing psychiatric or psychological therapy to victims of trauma (and includes a person who works voluntarily in that field);
protected communication means a communication that is protected by public interest immunity under section 67E;
psychiatric or psychological therapy includes counselling;
therapeutic context—a communication relating to a victim or alleged victim of a sexual offence is made in a therapeutic context if—
(a)     the communication is made—
(i)to enable a counsellor or therapist to assess the nature and severity of the trauma suffered by the victim or alleged victim, or consequent psychiatric, psychological or emotional harm; or
(ii)for the purposes, or in the course, of psychiatric or psychological therapy provided to the victim or alleged victim; and
(b)the communication is made in circumstances that give rise to a duty of confidentiality or a reasonable expectation of confidentiality.
67E—Certain communications to be protected by public interest immunity
(1)A communication relating to a victim or alleged victim of a sexual offence is, if made in a therapeutic context, protected from disclosure in legal proceedings by public interest immunity.
(2)However, the following communications are not subject to public interest immunity:
(a)a communication made for the purposes of, or in the course of, a physical examination of the victim or alleged victim of a sexual offence by a registered medical practitioner or registered nurse; or
(b)a communication made for the purposes of legal proceedings arising from the commission of the alleged offence or for commencing such legal proceedings; or
(c)a communication as to which reasonable grounds exist to suspect that the communication evidences a criminal fraud, an attempt to pervert the administration of justice, perjury or another offence.
(3)A public interest immunity arising under this section cannot be waived by—
(a)     the counsellor or therapist; or
(b)     a party to the protected communication; or
(c)the victim or alleged victim of the sexual offence or the guardian of the victim or alleged victim.
67F—Evidence of protected communications
(1)     Evidence of a protected communication—
(a)     is entirely inadmissible in committal proceedings; and
(b)     cannot be admitted in other legal proceedings unless—
(i)the court gives permission to a party to the proceedings to adduce the evidence; and
(ii)the admission of the evidence is consistent with any limitations or restrictions fixed by the court; and
(c)     is not liable to discovery or any other form of pre-trial disclosure.
(2)On an application for permission to adduce evidence of a protected communication, the judge may make a preliminary examination of the relevant evidence if satisfied that—
(a)the applicant has a legitimate forensic purpose for seeking permission to adduce the evidence; and
(b)there is an arguable case that the evidence would materially assist the applicant in the presentation or furtherance of his or her case.
(3)For the purposes of a preliminary examination of evidence, the court may order the counsellor or therapist to do one or more of the following:
(a)     to provide written answers to questions;
(b)to produce written materials relating to the relevant protected communications;
(c)     to appear for oral examination.
Exceptions—
1If the counsellor or therapist who provided the counselling or therapy is an employee, answerable to another (the principal) in the organisation in which the counsellor or therapist is employed, an order under this subsection is to be addressed to the principal unless the court is satisfied that there are good reasons for not taking that course in the circumstances of the particular case.
2An order requiring a person to appear for oral examination is not to be made unless the court is satisfied that the examination cannot otherwise be effectively conducted.
(4)The following provisions govern the conduct of a preliminary examination:
(a)     the preliminary examination is to be conducted—
(i)    in the absence of the jury (if any); and
(ii)    in a room closed to the public; and
(b)the evidence taken at the preliminary examination is not to be disclosed to the parties or their legal representatives except to the extent determined by the court; and
(c)no record of the preliminary examination is to be available for public access.
(5)In deciding whether to grant permission to adduce evidence of a protected communication, the court is to weigh—
(a)the public interest in preserving the confidentiality of protected communications;
against—
(b)the public interest in preventing a miscarriage of justice that might arise from suppression of relevant evidence.
(6)     In weighing the above considerations, the court is to have regard to—
(a)the need to encourage victims of sexual offences to seek psychiatric or psychological therapy and the extent to which the effectiveness of such therapy is dependent on the maintenance of confidentiality between the counsellor or therapist and the victim;
(b)the probative value of the evidence and whether its exclusion may lead to a miscarriage of justice;
(c)the attitude of the victim or alleged victim to whom the communication relates (or the guardian of the victim or alleged victim) to the admission of the evidence;
(d)whether admission of the evidence is being sought on the basis of a discriminatory belief or bias;
(e)the extent to which admission of the evidence would infringe a reasonable expectation of privacy and the potential prejudice to any person who would otherwise be protected by public interest immunity.
(7)The court is not to grant permission to adduce evidence of a protected communication unless satisfied that the public interest in preserving the confidentiality of protected communications is outweighed, in the circumstances of the case, by the public interest in preventing a miscarriage of justice that might arise from suppression of relevant evidence.
(8)If the court decides to grant permission to adduce evidence of a protected communication, it may make ancillary orders—
(a)     to prevent further publication or dissemination of the evidence; or
(b)     for any other purpose the court considers appropriate.
Background
The relevant factual background is not disputed by the parties. The applicant was found guilty on 15 March 2012 by a District Court jury of persistent sexual exploitation of a child between 1 January 1982 and 31 May 1990 (“the offence”). The victim was his stepdaughter. The applicant was sentenced on 7 August 2012 to imprisonment for 12 years with a non-parole period of six years.
On 19 November 2012 the victim instituted proceedings in the District Court claiming damages for injury and loss arising from the offence (“the civil proceedings”). By letter dated 25 September 2013, the solicitors acting for the victim in the civil proceedings disclosed and produced the following documents pursuant to Rule 160 (“the disclosed documents”):
1a written opinion of Deborah Lawton, psychologist, dated 3 September 2013 (“the Lawton Report”);
2progress notes of Lina Sohner, the victim’s former treating psychologist, covering the period 11 June 2009 to 26 July 2011; and
3other correspondence and documentation from the file of Ms Sohner.
The practitioner who made disclosure has deposed that she did not turn her mind to the question of whether these documents might be protected communications under Division 9.
Neither the applicant nor his legal representatives had prior knowledge of the disclosed documents or their contents. The documents contain allegations of sexual offending against the victim by three other men during the same period as the offences of which the applicant was convicted had occurred. The victim has not reported any of the other alleged perpetrators to the police. Her evidence at the applicant’s trial also did not disclose her allegation that she had been sexually abused by others.
In light of the information in the disclosed documents, on 14 November 2013 the applicant sought an extension of time to lodge a notice of appeal against his conviction. The basis for the application was that there had been “a miscarriage of justice in light of fresh evidence”. The applicant contends that the disclosed documents could have formed the basis of cross-examination of the victim and also cast reasonable doubt upon whether he committed the offence.
The applicant has not finalised and particularised his grounds of appeal nor has either party made submissions on the extension of time question. He prefers that these issues be deferred until after the Court determines whether the disclosed documents and the subpoenaed documents are subject to public interest immunity under s 67E and, if so, whether permission should be granted under s 67F to inspect the documents and adduce evidence of the contents.
On 27 November 2013 the District Court ordered that the implied undertaking be relaxed to the extent only that the applicant may apply to this Court for leave to issue and serve subpoenas for the production of the disclosed documents.
Thereafter this Court granted leave to issue and serve subpoenas on Ms Lawton, Ms Sohner and Ms Sohner’s employer, Adelaide Western General Practice Network Inc (“AWGPN”) requiring production of the disclosed documents and incidental material.
On 17 March 2014 the applicant sought relief in the District Court from the implied undertaking that prevented use of the information derived from the disclosed documents outside the civil proceedings. He sought permission to use the information in support of this application and the application for permission to appeal against conviction. That application was refused by the District Court on 18 March 2014 on the basis that it was inconsistent with the objects of Division 9.
The decision of the District Court was then appealed to this Court.[1] Bampton J noted that the purpose of the application for release from the implied undertaking was to enable the applicant’s legal representatives to make use of the information in the disclosed documents in support of the application under Division 9. Her Honour held that an order releasing the applicant from the implied undertaking and permitting him “to use the disclosed documents in the criminal appeal proceedings would be inappropriate as the Court would be sanctioning a past breach and a future breach of Division 9 contrary to the scheme of Division 9 of the Act”. The appeal was dismissed on 27 June 2014.
[1] C, RE v O, CL [2014] SASC 83.
The effect of the District Court orders made on 27 November 2013 and 18 March 2014 was to ensure compliance with Division 9. The applicant was entitled to issue subpoenas for production of the disclosed documents to this Court but could not make use of the information derived from those documents in support of his submissions relating to the application of Division 9.
On 14 July 2014, by consent, the District Court granted relief from the implied undertaking to the extent that the applicant may tender a redacted copy of an expert medical report of a Dr Jules Begg dated 16 January 2014 (the Begg Report) in the appeal against conviction. That report, like that of Ms Lawton, was prepared with a view to being tendered as expert opinion evidence in the District Court civil proceedings. The redacted copy of the report contains five paragraphs only.
Subpoenaed documents
In addition to the subpoenas for production of the disclosed documents, the applicant was also granted leave to issue and serve subpoenas for the production of certain other documents.
I inspected documents produced in response to subpoenas so as to determine to what extent, if any, they contained protected communications.[2] After that inspection, the applicant was granted leave to inspect and copy the documents produced by the Commissioner of Police, the Manager, Yarrow Place, Families SA, Ms Deborah Lawton and a Dr Nicholls (so far as the documents she produced did not disclose communications with Ms Sohner).
[2] R v R, GJ [2009] SASC 371 at [18]; (2009) 105 SASR 506 at 513 (Kourakis J as he then was; Duggan and Bleby JJ concurring).
While the report prepared by Ms Lawton contained communications made in a therapeutic context in terms of s 67D, it was clearly prepared for the purposes of the civil proceedings. Thus, s 67E(2)(b) removed the public interest immunity that would otherwise have applied.
Some of the documents produced by Families SA and Yarrow Place disclosed the identity of a person, or persons, who had made a notification that they suspected that the victim was being abused or neglected. Section 13 of the Children's Protection Act 1993 provides that a court cannot grant permission for evidence as to the identity of a notifier to be adduced in proceedings unless either the notifier consents to that course or the court is satisfied that the evidence is of critical importance in the proceedings and that failure to admit it would prejudice the proper administration of justice.
I was satisfied that in the particular circumstances revealed in the documents the identity of the notifier could not be of critical importance in the present application. For that reason, I determined that information disclosing the identity of a notifier should be redacted from the documents produced by Yarrow Place and Families SA. Whether the identity of the notifier might be of critical importance in any later proceedings need not, and cannot, be decided at this time.
I declined to grant permission to permit inspection and copying of subpoenaed documents produced by AWGPN (which include the notes of Ms Sohner), by Dr Nasrene Wilson (a medical practitioner working at AWGPN) and by Dr Julianne Nicholls (so far as they disclosed communications with Ms Sohner). The basis for that refusal was that the documents in question contained communications that were protected by Division 9. The question now to be decided is whether the applicant should be granted permission to inspect and copy these documents.
Before considering that issue it is necessary to refer to the substance of the information contained in those documents to which the applicant has been granted access.
Contents of documents available to applicant
Lawton Report
The report by Ms Lawton was prepared with a view to being tendered as expert opinion evidence in the District Court civil proceedings. Thus, her report is not a protected communication. As required by the rules and practice direction, Ms Lawton noted that she had been supplied with and read, amongst other documents, Ms Sohner’s notes about the victim. As Ms Sohner’s notes contain protected communications, I cannot refer to their content in these reasons.
Ms Lawton answered a series of questions as follows:
“3. Prior to the offending by [the applicant], did our client suffer from any psychological condition? If so, did the offending commencing in about 1992 aggravate or contribute to her condition?
I am not aware that she suffered from any of these disorders before the offending by [the applicant] commenced in 1992. Any self-report of assault and symptoms arising from it much before this time, I would regard as inaccurate. She lived with [the applicant], whom we know is an offender from age 6. I think it more likely that he commenced abuse than another offender was involved. It is perhaps pertinent to ask, before assuming guilt based on the hazy memories of a child, if her father and uncle have any history of abuse involving other children? In my opinion memories of events before the age of six are unreliable.
4. Our client has instructed us that she was also sexually abused by her natural father and her uncle. Can you please give your opinion on what impact that offending had on our client.
Your client thought she might have been abused by her uncle at age 3. Her age at the time makes this report, in my opinion, unsupportable as a matter of fact. She thought that her natural father may have touched her between the legs when she visited him. This was after [the applicant] came to live with them at age 6. She said that she couldn’t remember much at all. I think this report also to be unreliable. I do not mean that the abuse did not happen, but it is impossible to conclude that it did. The scale of this abuse seems to be minimal in comparison to the severity and frequency of the abuse by [the applicant]. It is most probable that her current symptoms can be attributed to the abuse by [the applicant].”
The Begg Report

The redacted report of Dr Begg contains allegations that the victim was sexually abused by her natural father when she was aged about five or six years, by an uncle when she was about three years old and by the father of a friend in about 1986 or 1987. The material included in the report gives considerable detail about the allegations made by the victim against each of the three men. Unlike the Lawton report, the material disclosed after redaction does not include any expression of opinion by Dr Begg as to whether or not the allegations are credible.
Whether protected communications
The initial question to be decided is whether the documents produced by AWGPN (including the notes of Ms Sohner), Dr Wilson and Dr Nicholls are protected communications as defined in s 67D. That definition refers to a communication that is protected by public interest immunity under s 67E. Section 67E(1) provides that communication relating to a victim or alleged victim of a sexual offence is, if made in a therapeutic context, protected from disclosure in legal proceedings by public interest immunity. However, s 67E(2) provides that certain classes of communication are not subject to public interest immunity.
Whether communications made in a therapeutic context
A threshold question is whether the communications by the victim to Ms Sohner and Dr Nicholls were made in a therapeutic context. The latter term is defined in s 67D to mean a communication made by a victim or alleged victim of a sexual offence made to a counsellor or therapist to assess the nature and severity of the trauma suffered by the victim or consequent psychiatric, psychological or emotional harm or for the purposes or in the course of providing psychiatric or psychological therapy.
It is clear from Ms Sohner’s case notes that she was consulted by the victim for the purpose of providing psychological therapy. Dr Wilson and Dr Nicholls are general practitioners. As may be expected, they were consulted by and provided advice and treatment to the victim in relation to a broad range of medical issues. The documents make it clear that Dr Wilson and Dr Nicholls did provide treatment to the victim in relation to psychiatric, psychological or emotional harm suffered by the victim. Thus, to that extent the communications were made in a therapeutic context.
The definition of “therapeutic context” also requires that the communication be made in circumstances that give rise to a duty of confidentiality or a reasonable expectation of confidentiality. It cannot be doubted that information provide to a medical practitioner or clinical psychologist for the purposes of receiving treatment was communicated in confidence.
Public interest immunity cannot be waived
Section 67E(3) provides that a public interest immunity conferred by that section cannot be waived by the counsellor or therapist, a party to the protected communication or the victim. That is consistent with the position at common law where it is the duty of the court, not the privilege of the executive, to determine whether documents will be produced or may be withheld.[3] However, at common law, in contrast to the position under 67E(3), the executive might choose not to object to release although the final decision lies with the court.[4] Because s 67E(3) prohibited any waiver of immunity, it is not necessary to consider whether the disclosure of documents by the victim’s solicitor for the purposes of the civil proceedings effected a waiver.
[3] Adelaide Brighton Cement v South Australia [1999] SASC 379 at [9]; (1990) 75 SASR 209 at 213.
[4] Ibid at 214 [9].
Exclusions from public interest immunity
Section 67E(2) excludes certain specified classes of communication from the public interest immunity otherwise conferred by s 67E(1). I now turn to those exclusions.
Paragraph (a) of s 67E(2) refers to a communication made for the purposes of or in the course of a physical examination of a victim or alleged victim of a sexual offence by a registered medical practitioner or nurse. While the documents produced by Dr Wilson and Dr Nicholls include reports of physical examinations of the victim, those examinations were not in any way connected with the allegations of sexual abuse. The examinations were conducted in the course of consultations relating to various health issues experienced by the victim up to thirty years after the alleged childhood sexual abuse.
The exception in paragraph (a) must be read in context as referring to a physical examination that is in some way related to the alleged sexual offence. Thus, I do not consider that, in the present circumstances, paragraph (a) operates to remove immunity.
Paragraph (b) of s 67E(2) provides that a communication made for the purposes of legal proceedings arising from the commission of the alleged offence is not subject to public interest immunity. For that reason, as I have already noted, the reports prepared by Ms Lawton and Dr Begg are not subject to immunity and have been provided to the applicant. The paragraph (b) exception is not relevant to the documents provided to the Court by Ms Sohner, Dr Wilson and Dr Nicholls. The documents were not made for the purposes of legal proceedings.
Paragraph (c) of s 67E(2) excludes from public interest immunity a communication as to which reasonable grounds exist to suspect that the communication evidences a criminal fraud, an attempt to pervert the administration of justice, perjury or another offence. There is information in the clinical notes prepared by Ms Sohner that purports to provide an explanation as to why the victim only made allegations to the police against the applicant and did not make allegations of sexual assault against the other three men. At face value, her explanation is credible. Thus, I do not have reasonable grounds to suspect that the circumstances fall within paragraph (c).
Should permission to adduce be granted?
I am satisfied that the contents of the documents provided to the court by the AWGPN, Dr Wilson and Dr Nicholls are protected by public interest immunity under s 67E. The question then is whether the court should give permission to adduce the evidence under s 67F(1).
Section 67F(1) provides that evidence of a protected communication is entirely inadmissible in committal proceedings but may be admitted in other proceedings if the court gives permission to adduce the evidence and the admission of the evidence is consistent with any limitations or restrictions fixed by the court. Evidence of protected communication is not liable to discovery or any other form of pre-trial disclosure.
Section 67F(2) provides that on an application for permission to adduce evidence of a protected communication the judge may make a preliminary examination of the evidence if satisfied that there is a legitimate forensic purpose for seeking permission to adduce the evidence and there is an arguable case that the evidence would materially assist the applicant.
I have already examined the relevant documents for the purpose of determining whether they contained protected communications. The allegation that the victim failed to report other men who had allegedly sexually abused her at a time that was approximately contemporaneous with the abuse of which the applicant has been convicted is highly relevant to his application for permission to appeal and any subsequent appeal. I am therefore satisfied that the applicant has a legitimate forensic purpose for seeking permission to adduce the evidence.
I also consider that there is clearly an arguable case that this evidence would materially assist him in his application for permission and the appeal.
Section 67F(5) requires that the court weigh the public interest in preserving the confidentiality of protected communications against the public interest in preventing a miscarriage of justice that might arise from the suppression of relevant evidence. Section 67F(6) requires the court when weighing these considerations to have regard to the matters listed at paragraphs (a) to (e).
Further guidance on the balancing exercise is provided by s 67F(7). This provision requires that the court is not to grant permission to adduce evidence of a protected communication unless it is satisfied that the public interest in preserving the confidentiality of the protected communication is outweighed, in the circumstances of the case, by the public interest in preventing a miscarriage of justice that might arise from suppression of relevant evidence.
The first consideration listed in s 67F(6) is the need to encourage victims of sexual offences to seek psychiatric or psychological therapy and the extent to which the effective use of such therapy is dependent upon the maintenance of confidentiality between therapist and victim. In the present case the importance that might otherwise be attached to this consideration has been diminished by the fact that confidential information that passed between the victim and those providing treatment to her has been disclosed in the civil proceedings in the District Court. I refer to the expert reports prepared by Dr Begg and Ms Lawton. Those reports were prepared in support of the civil proceedings commenced by the victim against the applicant.
Paragraph (b) of s 67F(6) requires the court to have regard to the probative value of the evidence and whether its exclusion may lead to a miscarriage of justice. In the present circumstances I consider this to be the paramount consideration. The victim has alleged to those providing medical and psychological treatment to her that she was abused by three other men at much the same time as the sexual assaults of which the applicant has been convicted. If that fact had been known at the time of his trial it seems inevitable that his counsel would have explored this issue very carefully. In those circumstances there must be a potential that the exclusion of this evidence may have lead to a miscarriage of justice.
The third consideration to be taken into account under s 67F(6)(c) is the attitude of the victim to admission of the evidence. The victim has been represented by counsel in the present proceedings. She opposes the admission of the evidence. Because the substance of the information has been disclosed in the civil proceedings, albeit in error, I attach much less weight to this consideration than might otherwise be the case.
The fourth consideration to be weighed in the balancing exercise is whether admission of the evidence is being sought on the basis of a discriminatory belief or bias. This matter is not relevant in the present case.
The final matter to be weighed by the court under s 67F(6)(e) is the extent to which admission of the evidence would infringe a reasonable expectation of privacy and the potential prejudice to any person who would otherwise be protected by public interest immunity. Because much of the relevant evidence has already been communicated to the applicant in the civil proceedings, the reasonable expectation that the victim may otherwise have held that her privacy would be maintained carries less weight than in other circumstances. That is also the position in relation to the potential prejudice to the victim that might be occasioned by the removal of the public interest immunity that may otherwise apply.
I now turn to the requirements of s 67F(5) and (7). I consider that the public interest in preventing a miscarriage of justice that might arise from suppression of the evidence clearly outweighs the public interest in preserving the confidentiality of protected communications.
Inspection of documents
Counsel for the applicant has sought permission to inspect the documents produced by AWGPN, Dr Wilson and Dr Nicholls. The issue is whether the decision of the Full Court in R v R, GJ[5] is determinative of that question.
[5] [2009] SASC 371 at [19]; (2009) 105 SASR 506 at 513.
In R v R, GJ Kourakis J (as he then was) held that documents containing protected communications that are returned on a subpoena cannot be inspected before or after the commencement of a trial. Duggan and Bleby JJ agreed with Kourakis J.
Counsel for the applicant submitted that the position was different in the present case because inspection was sought in aid of an application for permission to appeal and in support of any subsequent appeal. In other words the contention was that R v R, GJ should be distinguished as the statutory restriction does not apply in the context of an appeal.
In R v R, GJ the appellant had subpoenaed documents relating to counselling provided to the alleged victim by a school counsellor. The application under Division 9 to adduce evidence was called on soon after the arraignment and before the jury was empanelled. The judge refused to allow counsel to inspect the documents because he was not satisfied that the protected communications would materially assist the appellant in the presentation or furtherance of his case.
Kourakis J held (with Duggan and Bleby JJ agreeing) as follows:
17Section 67F(1)(c), which exempts protected communications from discovery or any other form of pre-trial disclosure, is the cornerstone of Div 9. The terms “discovery” and “pre-trial disclosure” are not defined. In the ordinary course, discovery refers to a pre-trial procedure where one party to proceedings makes available for inspection all relevant documents to the other parties. However, having regard to the statutory purpose of Div 9 of the Evidence Act, there is no sensible reason why the prohibition against disclosure should operate differently depending on whether a subpoena is made returnable on a day before the trial commences or on a day during the course of the trial. I would construe the phrase “discovery or other pre-trial disclosure” in s 67F to mean any disclosure, other than by way of the examination or cross-examination of witnesses, or the tender of some other evidence, in the trial. That construction allows the provisions of the Division to operate coherently; protected communications are not discoverable other than to the extent that their contents are disclosed through evidence that is adduced with the permission of the trial judge. Were it otherwise, protected communications could be sought without any limitation, other than the common law discretions, by way of subpoena or Basha inquiry[6] after the trial had commenced.
18The power of a trial judge is limited by s 67F to granting permission to adduce evidence and, for the purpose of exercising that discretion, undertaking a preliminary examination of the relevant evidence. The power of the judge to undertake a preliminary examination of the relevant evidence is conditioned by s 67F(2) on the satisfaction of the judge that the applicant has a legitimate forensic purpose for seeking permission to adduce the evidence and that there is an arguable case that the evidence would materially assist the applicant. The term “adduce” in the context of curial proceedings refers to the leading of evidence and not to the processes of discovery. The High Court held in Northern Territory v GPAO[7] that the provisions of the Evidence Act 1995 (Cth) which regulated the adducing of evidence did not affect the right or obligations of persons arising out of the issue and service of a subpoena.[8] Section 67F(2) does not provide for a preliminary examination of evidential material for the purpose of deciding whether to give an applicant permission to inspect or see that material so that the applicant may then consider whether to adduce it or not. Similarly, all of the powers given by s 67F(3) are calculated to allow the court to ascertain, with some certainty, the nature and scope of the evidence that would be adduced in the trial if permission were given.
19For the above reasons, I would hold that a trial judge is not empowered to permit inspection of documents containing protected communications returned on a subpoena before or after the commencement of the trial. The power is limited to permitting evidence of those communications to be received by asking a witness in the trial to describe them or by the admission of a written record of the communications already in the possession of a party to the proceedings. It follows that if the documents recorded protected communications, the court simply had no power to grant permission to inspect them. It is to that issue to which I now turn. (Emphasis in original.)
[6] R v Basha (1989) 39 A Crim R 337.
[7] (1999) 196 CLR 553.
[8] Ibid at [16] (Gleeson CJ and Gummow J); at [135] (Gaudron J); at [199] (McHugh and Callinan JJ).
The question is how the exemption provided by s 67F(1)(c) from “discovery or other pre-trial disclosure” operates in the context of an application for permission to appeal as distinct from a trial. What is currently being sought is permission to inspect the protected communications so as to determine whether they contain any information that might provide support for the application for permission to appeal. Should permission be granted to appeal, applications might potentially then be made for permission to adduce the evidence under s 67F(1)(b) and to admit the evidence as fresh evidence on the appeal.
If the word “trial” in the phrase “discovery or other pre-trial disclosure” were to be read literally the exemption provided by s 67F(1)(c) would not operate in the context of an application for permission to appeal or an appeal. The restriction would only operate in relation to pre-trial discovery or other pre-trial disclosure in the strict sense.
The clear object of Division 9 is to minimise the likelihood that victims of sexual offences will be deterred from obtaining therapy by the risk that information given in confidence to a counsellor or therapist will be disclosed in legal proceedings. It would not advance that objective if the words “discovery or any other form of pre-trial disclosure” in s 67F(1)(c) were construed as only applying at the pre-trial stage.
The words “discovery or any other form of pre-trial disclosure” ought to be interpreted in a purposively, rather than in a strictly literal, fashion so as to give best effect to the object of Division 9. Thus, the prohibition on discovery and disclosure should be read as extending to applications for permission to appeal and to appeals. I do not regard that purposive interpretation as involving an impermissible rewriting of the Act by the Court. Such a construction, to paraphrase the words used by Kourakis J R v R, GJ, would allow the provisions of Division 9 to operate coherently so that protected communications are not discoverable other than to the extent that their contents are disclosed through evidence that is adduced with the permission of the judge or appeal court.
Conclusion
I determine that the applicant is not granted permission under s 67F(1)(c) to inspect the documents produced by AWGPN, Dr Wilson and Dr Nicholls (to the extent that her records disclose Ms Sohner’s material). However, for the reasons already given at paragraphs 43 to 48 I grant permission to adduce the evidence under s 67F(1)(b) in support of the application to appeal the conviction. Should permission be granted to appeal, a further application may be made to admit the evidence as fresh evidence on the appeal. Such an application will need to be made without the applicant having inspected the documents