Southern Adelaide Health Service Inc v C - [2007] SASC 181

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
SOUTHERN ADELAIDE HEALTH SERVICE INC v C & ORS; CASE STATED ON ACQUITTAL (NO 1 OF 2006)
[2007] SASC 181
Judgment of The Full Court
(The Honourable Justice Debelle, The Honourable Justice Anderson and The Honourable Justice White)
22 May 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION - MISCELLANEOUS MATTERS - SOUTH AUSTRALIA - CASE STATED AND REFERENCE OF QUESTION OF LAW
PROCEDURE - SUPREME COURT PROCEDURE – SOUTH AUSTRALIA - SUBPOENA
Subpoena of documents - case stated and appeal by non-party - appeal by non-party to criminal proceedings who sought to set aside subpoena – whether appeal competent – whether authorisation of Governor pursuant to s 64D of the Health Commission Act operated to prevent disclosure of documents the subject of the subpoena – whether subpoena should have been set aside for reason that it served no legitimate forensic purpose - whether s 350(2) of the Criminal Law Consolidation Act prevents court from refusing to refer stated case where Attorney-General has applied to have questions reserved for determination by Full Court – questions as to meaning of s 64D answered.
Criminal Law Consolidation Act 1935 s 350, s 351, s 352; Crown Proceedings Act 1992 s 9(2); Evidence Act 1929 s 21, s 22, s 50; Juries Act 1927 s 56; South Australian Health Commission Act 1976 s 64D; Statutes Amendment (New Rules of Civil Procedure) Act 2006 s 94; Supreme Court Act 1935 s 35, s 50, s 63, referred to.
Attorney-General’s Reference (No 1 of 1975) [1975] QB 773; Alister v The Queen (1984) 154 CLR 404; Carter v Hayes (1994) 61 SASR 451; Commissioner of Taxation v Tang (2006) 96 SASR 55; Director of Public Prosecutions v B (1998) 194 CLR 566; Merchant Service Guild of Australasia v Newcastle & Hunter River Steamship Co Ltd (1913) 16 CLR 591; R v Allen (2002) 81 SASR 434; R v Foggo; ex parte Attorney-General [1989] 2 Qd R 49; R v Garrett (1988) 49 SASR 435; R v Rigby (1956) 100 CLR 146; R v Salem (1989) 16 NSWLR 14; Witness v Marsden (2000) 49 NSWLR 429, applied.
Alliance Petroleum Australia NL v The Australian Gas Light Company (1983) 34 SASR 215; Application for Reservation of Questions of Law (No 2 of 1999) (1999) 106 A Crim R 423; Australian National Railways Commission v Beesley (1999) 73 SASR 414; Bill Williams Pty Ltd v Williams (1972) 126 CLR 146; Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47; Hope v Bathurst City Council (1980) 144 CLR 1; Industrial Equity Ltd v Commissioner for Corporate Affairs [1990] VR 780; Mack v Commissioner of Stamp Duties (NSW) (1920) 28 CLR 373; National Employers’ Mutual General Association Ltd v Waind [1978] 1 NSWLR 372; R v Bingapore (1975) 11 SASR 469; R v Bristow [1960] SASR 210; R v C, DR (2006) 244 LSJS 212; R v C, DR [2006] SASC 307; R v Douglas (1991) 1 Qd R 386; R v Millhouse (1980) 24 SASR 555; R v Smith [1959] 2 QB 35; Rapson v Workcover Corporation [2007] SASC 172; Rochfort v Trade Practices Commission (1982) 153 CLR 134; Sankey v Whitlam (1978) 142 CLR 1, considered.

SOUTHERN ADELAIDE HEALTH SERVICE INC v C & ORS; CASE STATED ON ACQUITTAL (NO 1 OF 2006)
[2007] SASC 181
Court of Criminal Appeal: Debelle, Anderson and White JJ

DEBELLE J. Two matters are before the Court. One is an appeal by leave pursuant to s 352 of the Criminal Law Consolidation Act 1935. The other is a case stated pursuant to s 350 of that Act. Both concern a ruling setting aside a subpoena to produce documents. The ruling was made in the course of a voir dire hearing before a trial for murder but after the defendants had been arraigned.
The following recital of the facts leading to the appeal and the case stated is based on the facts and documents contained in the case stated.
The Flinders Medical Centre Incorporated was incorporated under the South Australian Health Commission Act 1976. It is now called the Southern Adelaide Health Service Incorporated. The subpoena was addressed to the Flinders Medical Centre. It had wrongly named the hospital. No issue was taken on that ground. I will call the hospital “the Flinders Medical Centre”.
Daniel McKenna was one of five persons who were jointly charged with the murder of Mr Adam Ballard on 25 July 2003 at Glenelg North. The prosecution case was that Ballard was assaulted by one or more of the accused and that during that assault, he was hit with a crowbar on a number of occasions.
After the assault, Ballard was taken at about midnight to the Emergency Department of the Flinders Medical Centre. He complained of pain and difficulty in breathing. He was treated by a medical practitioner. He remained under observation for approximately three hours and was discharged. At about 7.00 am next morning, Ballard died at his home some four hours after he had been discharged from the Flinders Medical Centre.
A post-mortem was conducted by Dr Cala. Dr Cala concluded that Ballard had died of blood loss due to blunt force to his lower chest and abdominal trauma. Ballard had suffered a ruptured spleen and there was a large volume of blood in his abdominal cavity. On examination, he had multiple bruises and abrasions to his face, limbs and trunk. A bruise across his left side was consistent with Ballard having been struck by an object such as a crowbar or tyre lever. Ballard did not undergo a CT scan, a standard diagnostic procedure for a suspected rupture of the spleen. The ruptured spleen and the broken rib were consistent with a blow or blows from a crowbar. Dr Cala concluded that Ballard had suffered shock from blood loss which led to his death.
After Ballard’s death, Professor David Ben-Tovim, a member of the Clinical Review Committee of the Flinders Medical Centre had instituted an investigation into the treatment and discharge of Ballard. The Clinical Review Committee had been established by the Flinders Medical Centre for the purpose, among others, of investigating adverse incidents within the Flinders Medical Centre with a view to improving the procedures at the hospital. The investigation instituted by Professor Ben-Tovim was called a “Root Cause Analysis”. In these reasons, Root Cause Analysis is sometimes called “RCA”. Documents were produced in consequence of the investigation.
Before the trial began, Daniel McKenna, one of the accused, had issued a subpoena seeking production by the Flinders Medical Centre of the following documents:
1.All documents, memoranda and communications arising from or relating to the death of Mr Adam Ballard on 27 July 2003 and subsequent inquiry.
2.All notes, memoranda, documents and communications in respect of an inquiry held by the Flinders Medical Centre into the death of Mr Adam Ballard and into the handling of the admission by Flinders Medical Centre staff.
The other four accused supported the application for production and inspection of those documents.
There was no issue as to the documents mentioned in paragraph 1 of the subpoena. The issue concerned the documents mentioned in paragraph 2. The only documents which answered the description of the documents described in paragraph 2 were documents which came into existence during the course of the RCA. The procedural steps which followed are not clearly set out in the case stated. It appears that the Flinders Medical Centre produced the documents sought but the court did not make them available to the parties. It seems that the Flinders Medical Centre had applied for an order setting aside the subpoena. Pursuant to s 9(2) of the Crown Proceedings Act 1992, the Attorney General was granted leave to intervene in support of the application on the ground that the application to set aside the subpoena raised matters of public importance. The Flinders Medical Centre and the Attorney-General submitted that the subpoena should be set aside as to paragraph 2 on the following grounds:
1.There was no legitimate forensic purpose and, in particular, it was not “on the cards” that the material produced in answer to the subpoena to the FMC would materially assist the defence.
2.The FMC was prohibited by s 64D(3) of the South Australian Health Commission Act 1976 from producing the RCA documents to the Court because the documents comprised confidential information as defined in that section, disclosed to members of the Clinical Review Committee authorised by the Governor under s 64D, and persons providing technical assistance to them for the purposes of assessing and improving the health service provided by the Emergency Department of the FMC and elsewhere in the FMC.
The Flinders Medical Centre and the Attorney-General further submitted that, if the subpoena was not set aside and if production of the documents was not prohibited by s 64D of the South Australian Health Commission Act 1976, the doctrine of public interest immunity applied to the documents in question to prevent their disclosure in the proceedings.
On 21 April 2006 Sulan J, the trial judge, ruled on the application to set aside the subpoena. He declined to set the subpoena aside. He found that the evidence was relevant. He determined that s 64D did not prevent disclosure because the persons conducting the review into the death of Ballard were not authorised to do so pursuant to s 64D of the South Australian Health Commission Act, (“the Health Commission Act”). Sulan J then considered the claim for public interest immunity. He inspected the documents and concluded that they provided no information beyond that which had been disclosed to the defence in the material provided to them as part of the evidence to be called by the prosecution. He held that the accused would receive a fair trial if the claim of public interest immunity was upheld. Upon Sulan J stating that conclusion, the accused withdrew the claim for production of the documents. Sulan J added that, in any event, the claim of public interest immunity had been made out.
In short, Sulan J found that the documents were relevant and that s 64D of the Health Commission Act did not prevent their disclosure. Sulan J inspected the documents and upheld the claim for public interest immunity. The Flinders Medical Centre therefore succeeded on its application. The documents were not inspected by the defendants.
On 2 August 2006 following a trial by jury, one of the accused was convicted of murder. The other four accused including Daniel McKenna were acquitted.
The Flinders Medical Centre applied for leave to appeal against the ruling on three grounds:
1.that the judge had erred in holding that the subpoena to Flinders Medical Centre should not be set aside for the reason that it serves no legitimate forensic purpose and, in particular, that it was “on the cards” that the material produced in answer to the subpoena to Flinders Medical Centre would materially assist the defence case;
2.that the judge had erred in holding that the proclamation of the Governor, on its proper construction, authorised the members of the Flinders Medical Centre Clinical Review Committee to receive information pursuant to s 64D of the South Australian Health Commission Act 1976 only in their capacity as members of that committee and not otherwise;
3.that the judge had erred in holding that the information received in the course of the root cause analysis relating to the death of Mr Ballard did not attract the operation of s 64D of the South Australian Health Commission Act 1976.
The application is puzzling, to say the least, as the Flinders Medical Centre had succeeded on its application. I will return to that question.
Section 352 of the Criminal Law Consolidation Act does not permit an appeal against an interlocutory order in a criminal trial unless it is an issue antecedent to trial. The order of Sulan J concerning the subpoena was not an order on an issue antecedent to trial. However, there was a question whether a person not a party to a criminal trial is able to appeal against an interlocutory order made in that trial. Sulan J concluded that that last question raised a matter of general importance which could be determined by the Full Court. As the grounds of appeal relating to the interpretation of s 64D also raised matters of general importance, he granted leave to appeal on grounds 2 and 3. He refused leave in respect of ground 1.
The Attorney-General also applied pursuant to s 350(2)(b) of the Criminal Law Consolidation Act for an order to have the following questions reserved for the consideration and determination of this Court arising out of the acquittal of Daniel McKenna on 2 August 2006:
1.On the proper construction of s 64D South Australian Health Commission Act 1976, is it sufficient to characterise a disclosure as one that is made pursuant to that section if it was made to a person who was not expressly or individually named in any authorisation by the Governor but was at the time:
(a) a member of a specified group or body; and
(b) conducting research into the causes of mortality or morbidity or assessing and improving the quality of specified health services within the terms of paragraphs (a) and (b) of s 64D(1)?
2.If the answer to the first question is no, what other conditions must be satisfied in order for the disclosure to have been made pursuant to s 64D of the South Australian Health Commission Act 1976?
3.Is a person who is trained in the conduct of Root Cause Analysis providing technical and administrative assistance when engaged in the performance of the functions referred to in paragraphs (a) and (b) of s 64D(1)?
4.Should the subpoena to the Flinders Medical Centre have been set aside for the reason that it served no legitimate forensic purpose and, in particular, that it was not “on the cards” that the material produced in answer to the subpoena to the Flinders Medical Centre would materially assist the defence case?
The judge’s reasons for the order reserving all four questions for the consideration of this Court are published in R v C, DR [2006] SASC 307. In those reasons he expressed the view that question 4 raised neither an important question of law nor a question of general application. His reason for that conclusion was that his decision that the subpoena sought relevant documents had resulted from the application of established principle and was based on the facts in the trial before him. However, out of deference to the Solicitor-General’s contention that the terms of s 350(2) are mandatory in operation and noting that this Court can itself determine whether it should determine the question, he included question 4 in the case stated.
The questions which must, therefore, be considered by this court are
1. Is the appeal by the Flinders Medical Centre competent?
2.Did the authorisation of the Governor pursuant to s 64D of the Health Commission Act operate in the particular circumstances of this case to prevent disclosure of the RCA documents on the ground that they were obtained by the Clinical Review Committee pursuant to s 64D? That question carries with it the questions raised by paragraph 2 of the appeal and Questions 1, 2 and 3 of the case stated.
3.Should the subpoena have been set aside on the grounds stated in Question 4 of the case stated?
4.Are the terms of s 350(2) of the Criminal Law Consolidation Act mandatory in the sense that the court has no discretion to refuse to state the questions because, after an acquittal, the Attorney-General had applied to have the questions reserved for consideration determination by the Full Court?
5.Should this Full Court decline to answer question 4 on the ground that it is not a relevant question within the meaning of s 350(a1) of the Criminal Law Consolidation Act?
The Competency of the Appeal
The order made by Sulan J was an interlocutory order. Sulan J had granted the Flinders Medical Centre leave to appeal from that order.
The grant of leave is curious because the Flinders Medical Centre had succeeded on its application in that the judge had refused to order that the documents be produced to the defendants for inspection. Although Sulan J did not set aside the subpoena, he refused the defendants’ application to inspect the documents which had been produced in answer to the subpoena. Although it may not have been satisfied with the decision of Sulan J on the question whether the defendants had a legitimate forensic purpose for seeking the documents and as to the interpretation of s 64D of the Health Commission Act, the Flinders Medical Centre had ultimately succeeded. A successful party is not entitled to appeal against an order made in its favour, even though it might be aggrieved by findings or rulings made in the course of the reasoning leading to the orders which were made. There was, therefore, no order against which the Flinders Medical Centre could appeal, whether by leave or otherwise. The appeal is, therefore, incompetent and must be dismissed.
The parties made lengthy submissions on the question whether the Flinders Medical Centre had an entitlement to apply for leave to appeal. It is not necessary to rule on that question. However, out of deference to the arguments I make the following observations.
The common law does not provide a right of appeal. There is no right of appeal unless it is provided by statute, that is to say, the Flinders Medical Centre does not have a right of appeal unless it can point to a statute providing that right.
Section 50(1) of the Supreme Court Act 1935 provides a general right of appeal in these terms:
Subject to the rules of court an appeal shall lie to the Full Court against every judgment, including every declaratory judgment entered pursuant to section 30B of this Act and any final assessment made thereon, order, or direction of a judge, whether in court or chambers, and also from the refusal of any judge to make an order.
That general right of appeal is circumscribed in a number of respects by the provisions of s 50(1)(a). It is not necessary to recite the provisions of s 50(1)(a) other than to note the terms of paragraph (c) of that subsection which, broadly stated, provide that an appeal against a interlocutory judgment or order may only be made with the leave of the court, subject to certain named exceptions. The relevant parts of paragraph (c) are in these terms:
(c)     no appeal shall lie without the leave of the judge or of the Full Court from –
(i)    an order on appeal from the Magistrates Court;
(ii)     any interlocutory order or interlocutory judgment except in the following cases, namely;
(A)any order refusing unconditional leave to defend;
(B)where the liberty of the subject or the custody of infants is concerned.
The provisions of s 50 must be read with s 63(1) of the Supreme Court Act which prescribes the practice and procedure in criminal appeals in these terms:
(1)The practice and procedure in all criminal causes and matters, including the practice and procedure upon appeal, except as expressly altered by this Act, shall be the same as the practice and procedure in similar causes and matters before the passing of this Act.
The practice and procedure for criminal appeals which had applied before the Supreme Court Act 1935 was enacted was noted in R v Millhouse (1980) 24 SASR 555 and in R v Garrett (1988) 49 SASR 435. It is unnecessary to repeat what was said in those judgments. It is sufficient to note that the Criminal Appeals Act 1924 provided a person convicted on information with the right to appeal to the Full Court against his conviction on any ground of appeal which involved a question of law alone or by leave on any ground which involved a question of fact alone or of mixed law and fact. The substance of the 1924 provisions was repeated in Part XI of the Criminal Law Consolidation Act 1935 which included s 352. Those provisions have remained substantially unchanged except by the addition of the power of the Attorney-General to appeal against sentence. Section 352 was in these terms at the time of the appeal:
352    (1)     Appeals lie to the Full Court as follows:
(a)     if a person is convicted on information –
(i)the convicted person may appeal against the conviction as of right on any ground that involves a question of law alone;
(ii)the convicted person may appeal against the conviction on any other ground with the leave of the Full Court or on the certificate of the court of trial that it is a fit case for appeal;
(iii)the convicted person or the Director of Public Prosecutions may appeal against sentence passed on the conviction (other than a sentence fixed by law), or a decision of the court to defer sentencing the convicted person, on any ground with the leave of the Full Court;
(ab)if a person is tried on information and acquitted and the trial was by a judge sitting alone, the Director of Public Prosecutions may appeal against the acquittal on any ground with the leave of the Full Court;
(b)if a court makes a decision on an issue antecedent to trial that is adverse to the prosecution, the Director of Public Prosecutions may appeal against the decision –
(i)as of right, on any ground that involves a question of law alone; or
(ii)on any other ground with the leave of the Full Court;
(c)if a court makes a decision on an issue antecedent to trial that is adverse to the defendant –
(i)the defendant may appeal against the decision before the commencement or completion of the trial with the leave of the court of trial (but leave will only be granted if it appears to the court that there are special reasons why it would be in the interests of the administration of justice to have the appeal determined before commencement or completion of the trial);
(ii)the defendant may, if convicted, appeal against the conviction under paragraph (a) asserting as a ground of appeal that the decision was wrong.
(2)     If an appeal or an application for leave to appeal is made to the Full Court under this section, the Full Court may required the court of trial to state a case on the questions raised in the appeal or proposed appeal and the matter will then be dealt with in accordance with the provisions applicable to cases stated in the same way as if the questions had been reserved.
In addition to those rights of appeal, provision was made for a trial judge to reserve a question of law for the consideration of the Full Court. The provisions of ss 350 and 351 of the Criminal Law Consolidation Act reproduce with some modifications the provisions of the Criminal Law Consolidation Act 1876. Those provisions are still in force. In 1980 there was added to that a power in the Attorney-General, upon a defendant’s acquittal, to require the trial judge to state a case to the Full Court on any question of law that arose at the trial, provided that the Full Court’s determination of the question was not to invalidate or otherwise affect the acquittal: see R v Garrett at 440 to 444.

Thus, at the time of the enactment of the Supreme Court Act 1935 criminal appeals were the subject of other statutory provisions than s 50 of that Act. Thus, as a general rule, criminal appeals are regulated by Part 11 of the Criminal Law Consolidation Act and in particular by ss 350, 351 and 352.
However, as Cox J noted in R v Garrett at 445, it cannot be said that s 50 has no application to all criminal causes and matters. He noted one exception which is not relevant for present purposes. Shortly after, Cox J added:
The question before us relates to an order which was sought with respect to a trial on information in this Court, and in my judgment that class of criminal cause or matter is excluded from s 50. When s 50 was enacted the appeal provisions of the Criminal Law Consolidation Act had been in force for a decade or so. One might reasonably interpret Pt XI of that Act as a complete code with respect to the review of verdicts and orders made on the criminal side. An appeal under Pt XI could only be brought by a convicted person. If there was to be any relaxation or extension of the rights of appeal conferred by Pt XI, one would expect them to have been enacted by way of amendment to Pt XI and not by words of ambiguous generality in another Act altogether.
The decisions in R v Millhouse and R v Garrett concerned the rights of appeal of a defendant. In neither case was it necessary to consider the rights of appeal of a third party, that is to say, a person involved in criminal proceedings who is neither the prosecuting authority nor the defendant. Neither s 352 nor its legislative predecessors deals with such appeals. An examination of the terms of s 352 does not suggest that there is any necessary implication proscribing third party appeals.
Persons to whom a subpoena is addressed are, as a matter of course, persons who are not parties to proceedings. A person attending court pursuant to a subpoena requiring him to give evidence has standing to apply for an order to set it aside or to have compliance with a subpoena subject to conditions as to an anonymity: Witness v Marsden (2000) 49 NSWLR 429 at [60]. It is a well-established procedure for persons, who have been served with a subpoena to produce documents in either a civil trial or a criminal trial, to apply for an order setting aside the subpoena or modifying its terms. It is also well-established in civil proceedings that a person served with a subpoena may appeal if aggrieved by the order which has been made: see, for example, Alliance Petroleum Australian NL v The Australian Gas Light Company (1983) 34 SASR 215 where the parties exercised the right of appeal provided in s 50 of the Supreme Court Act; Rochfort v Trade Practices Commission (1982) 153 CLR 134 where the parties appeared to have been exercising the right of appeal provided by s 24 of the Federal Court Act; National Employers’ Mutual General Association Ltd v Waind [1978] 1 NSWLR 372 where a party appealed by leave and the trial was stopped (in that case a civil trial) to enable that party who was seeking to prevent privileged documents from being produced for inspection to appeal against an order to produce them. The practice is sound. Not infrequently, there will be a question whether documents are the subject of some kind of privilege or are confidential documents. That privilege or confidence might be irrevocably lost if there is no opportunity to test the decision at first instance. Waind’s case is an example.
There is no reason or principle why a person who has applied to set aside a subpoena to produce documents or to limit its operation should not be able to apply for leave to appeal against an adverse order in criminal trials as well as in the civil trials. If the appeal is in a criminal trial, the appellant will be exercising a right of appeal pursuant to s 50 of the Supreme Court Act. The clear policy of s 350 and s 352 is that appeals should not disrupt the hearing of a criminal trial. However, there will not be a spate of appeals which will disrupt trials. An order made on an application to set aside a subpoena or to limit its operation is an interlocutory order. An appeal against an interlocutory order may be prosecuted only if permission to appeal is granted. This will limit appeals. Furthermore, issues concerning subpoenas in a criminal trial are, as a general rule, resolved on a voir dire hearing before the trial commences before the jury. There is a slight risk only that a criminal trial will be disrupted.
This is not the only kind of decision which affects a person not a party in the trial. Other instances of decisions which might affect third parties who might wish to appeal include a witness who has been subpoenaed to give evidence, a witness who has unsuccessfully applied for an exemption from giving evidence pursuant to s 21 of the Evidence Act 1929, a witness who wishes to refrain from answering questions on the basis of relevance or vexatiousness pursuant to s 22 of the Evidence Act, a banker who does not wish to give oral evidence during the course of a trial pursuant to s 50 of the Evidence Act, and a juror who seeks to be discharged from service during the course of a trial pursuant to s 56 of the Juries Act 1927. The extent to which, if at all, they are able to appeal is a matter for later consideration. They raise quite different kinds of issues and the fact that these are all instances which would occur in the course of a trial might indicate that the likelihood is that they are not decisions which are capable of being appealed. However, I express no final conclusion on each issue.
For these reasons, a person served with a subpoena who seeks to appeal against an adverse order made on an application in respect of that subpoena may apply for permission to appeal. However, for the reasons already given, because the Flinders Medical Centre was the successful party, there was no ground on which it was able to appeal in this case. The appeal is incompetent.
The Operation of Section 64
It is convenient to deal next with s 64 D of the Health Commission Act. Section 64D provides:
(1)     This section applies to a person, or the members from time to time of a specified group or body, authorised by the Governor, by instrument in writing, to have access to confidential information for the purpose of –
(a)conducting research into the causes of mortality or morbidity; or
(b)assessing and improving the quality of specified health services,
and to any person providing technical, administrative or secretarial assistance in the performance of such functions.
(2)     Confidential information may be disclosed to a person to whom this section applies without breach of any law or any principle of professional ethics.
(3)     Subject to this section, a person must not in any circumstances (including proceedings before any court, tribunal or board) divulge confidential information obtained directly or indirectly as a result of a disclosure made pursuant to this section.
Penalty: Division 5 fine.
(4)     Subsection (3) does not prevent a person to whom this section applies disclosing confidential information to another person to whom this section applies.
(5)     A person must not, when appearing as a witness in any proceedings before a court, tribunal or board, be asked, and, if asked, is not required to answer, any question directed at obtaining confidential information obtained by that person directly or indirectly as a result of a disclosure made pursuant to this section and any such information volunteered by such a person is not admissible in any proceedings.
(6)     In this section –
“confidential information” means information relating to a health service in which the identity of the patient or person providing the service is revealed.
The purpose of s 64D is threefold. First, it permits the disclosure of confidential information to persons or members of bodies or groups authorised to receive it for the purposes identified in s 64D(1): see s 64D(2). Secondly, it prohibits a person to whom confidential information has been disclosed pursuant to subsection (2) from divulging it in any circumstances including proceedings before a court: s 64D(3). Thirdly, it prohibits a person to whom confidential information has been disclosed from being asked or required to answer, when a witness in any proceedings, any question directed at obtaining confidential information disclosed to the witness pursuant to subsection (2): s 64D(5). It will be noticed that the definition of “confidential information” means information relating to a health service in which the identity of the patient is revealed as well as information relating to a health service in which the identity of the person providing the service is revealed: s 64D(6).
By an authorisation dated 17 April 1997 and made pursuant to s 64D, the Governor authorised a number of bodies to have access to confidential information in accordance with s 64D. The authorisation was expressed in these terms:
Pursuant to Section 64D of the South Australian Health Commission Act 1976 and with the advice and consent of the Executive Council, I authorize the persons listed below and the members from time to time of a group or body listed below to have access to confidential information in accordance with that Section.
The bodies listed in the authorisation included three groups at Flinders Medical Centre, one of which was the Clinical Review Committee.
In 2003 the Clinical Review Committee comprised approximately 12 members. They were senior members of staff representing a range of disciplines at the hospital. The responsibilities of the committee were wide-ranging and related to hospital safety and quality. They included reviewing complaints by both patients and staff concerning patient management, reviewing outcomes of audit activities throughout the hospital and undertaking safety reviews and investigations. The committee met regularly throughout the year and in addition on an ad hoc basis. The frequency of the meetings depended on the work load of the Committee.
The purpose of the Clinical Review Committee can be gleaned from its terms of reference as stated in a document dated 28 February 2001 and from the evidence of Professor David Ben-Tovim, a member of the Clinical Review Committee. The aim of the Committee is to ensure optimal patient care at the Flinders Medical Centre. The terms of reference state the role of the Committee in these terms:
·Review of clinical and administrative audit activities conducted within Flinders Medical Centre by various Divisions and Departments.
·Advise on the appropriateness of audit activity already conducted and suggest additional specific audits where indicated.
· Identify potential problems, guide and advise appropriate departments.
The terms of reference then note that the Committee has the privilege conferred by s 64D. Under the heading “Modus Operandi” are set out a number of activities of the Committee. They include
MODUS OPERANDI
1.To receive and review audit plans and reports from all departments and divisions. This includes Surgery, Medicine, Eyes, Anaesthesia, Critical Care Medicine Unit, Pain Unit, Obstetrics and Gynaecology, Paediatrics, Psychiatry, Department of Emergency Services, Laboratories, and where appropriate, other audit activity within Flinders Medical Centre. Publication of good audits should be encouraged.
2. Routine review of patient and staff complaints relevant to patient management.
3. Review of Medico-Legal cases and patient complaints. Pressing urgent matters to be discussed as required.
4. Review of national and international audit data.
5. To direct specific audit activity where appropriate.
There is an additional Item 6 which lists activities which, Item 6 states, might need to be regularly considered. Those activities include death, drug therapy review, and a review of the appropriateness of diagnostic procedures. It is manifest that the aim of the Clinical Review Committee is to take steps to ensure that patient care is at the highest level and that aim is to be achieved by examining procedures within the hospital as well as by examining untoward events such as the death of a patient.
In 2003, some members of staff at the Flinders Medical Centre as well as some members of staff at other hospitals were trained in the process called Root Cause Analysis. That is an investigative process undertaken by hospitals with the intention of improving the delivery of services. It seeks to identify causes of events, including systemic factors, rather than focus on individual responsibility for failure to deliver proper patient services. In January 2003, Professor Ben-Tovim and other officers in the Department of Human Services had attended a training program in the United States of America.
A program had been developed in South Australia to train health workers intending to conduct Root Cause Analysis. The first program was conducted in May 2003. It occupied two days. The persons who had delivered the program in the United States came to Adelaide and provided that further training. Professor Ben-Tovim and Ms Ferris participated in that training program in Adelaide.
The intent and purposes of Root Cause Analysis was explained by Professor Runciman, an expert in hospital procedures. The judge made the following findings based on his evidence.
31RCAs were conducted by the CRC from time to time. RCA involves an investigation into the basic and contributing factors of an identified adverse event or potential event. Its particular utility is in the investigation of complex multi-factored or multi-causal events. RCA seeks to identify causes of events, including systematic factors, rather than focusing purely on individual responsibility.
32As at July 2003, the process had only recently been employed in the South Australian public health service and in Australian health services generally. It is particularly used in hospitals and is specifically helpful in the investigation of events relating to patient care. It has previously been used in other contexts such as investigations in relation to aviation disasters and disasters at oilrigs and nuclear power plants. The RCA process is endorsed and recommended in hospitals by the Australian Council for Safety and Quality in Health Care.
33RCA is not used for the investigation of performance issues, intentionally unsafe acts, criminal acts, purposefully unsafe acts, acts related to alcohol or substance abuse or alleged or suspected patient abuse, as these investigations are entirely in the public domain. The purpose of RCA is to develop corrective strategies to prevent adverse events in the future, by understanding causative factors, and to systematically and progressively improve the complex systems and processes that affect the quality and safety of healthcare.
34The process of an RCA requires an experienced investigation team comprising those who are familiar with the decision making process involving similar diagnostic risk and environmental factors including doctors, paramedical staff and nurses. The RCA team is obliged first to identify the event and characterise it. It is then required to analyse and determine the factors that contributed to how an adverse event or potentially adverse event occurred. The RCA team will then explore all potential causative factors and systems issues that may have “set the scene” for error to occur. The methodology of continual enquiry directs the determination of weaknesses or risks in the system with sustained efforts to “dig deep” to find underlying systematic weaknesses.
35In order for an RCA to be effective, it is necessary that communications between those conducting an RCA and those providing information is confidential. Staff of the hospital and medical practitioners are encouraged to speak frankly about the incident, and in so doing, comment on the systems in place, the conduct of those who had charge of a patient and upon any other relevant factors which may assist in identifying any systematic failures. Professor Runciman and Professor Ben-Tovim expressed their opinions that, unless the identity of persons giving information remains confidential and the information source is maintained, an RCA could not be conducted effectively.
36Professor William Ben Runciman, an expert in hospital procedures, explained the process at the conclusion of an RCA:
The team … will make recommendations as to changes in systems, training or environmental factors such as changes to facilities, rostering, supervision, backup and equipment. In this way system change is driven by the RCA process and reporting can not be ignored or ‘shelved’. The CEO is required to either implement recommendations or to document why they are not to be implemented (e.g. awaiting extra funding.)
Another aspect of the effectiveness of an RCA is that the results are produced in a format and according to a structure such that they can be aggregated with the results of other RCAs. The power of this process is that the contributing factors identified by the RCAs or “clusters” when considered in combination, though they might relate to the different adverse events, are known to reveal patterns of errors or show common causes for adverse events which ideally may then be designed out of systems.
That description makes it apparent that the intent and purpose of an RCA is entirely consistent with the role of the Clinical Review Committee. It is a procedure by which an investigation can be made of untoward events such as death for the purpose of improving the delivery of health services at the hospital, that is to say, it has the same purpose as the Clinical Review Committee.
This summary of the intent and purposes of an RCA demonstrates that it is one means by which the Clinical Review Committee might conduct a review of an adverse incident at the Flinders Medical Centre. The goal of an RCA was entirely consistent with the purposes of the Clinical Review Committee. As Sulan J found in paragraph [31], RCAs were conducted by the Clinical Review Committee from time to time. It must be noticed also that in August 2003 it was a relatively new procedure.
In August 2003, Professor David Ben-Tovim held the position of Director, Clinical Governance at Flinders Medical Centre. His duties included promoting throughout the hospital the safety and quality of the clinical care provided at the Flinders Medical Centre. The Deputy Director, Clinical Governance, was Ms Annette Ferris. Professor Ben-Tovim was a member of the Clinical Review Committee and Ms Ferris was the Executive Officer of that committee but not a member of it.
On 4 August 2003 the Chief Executive of the Flinders Medical Centre asked Professor Ben-Tovim, as a member of the Clinical Review Committee, to convene an RCA team to determine the root cause and factors contributing to the death of Ballard. The request to Professor Ben-Tovim was expressed in a memorandum dated 4 August 2003 in these terms:
This memo confirms that within your role as a member of the Clinical Review Committee (CRC) you have delegated the responsibility of convening a Root Cause Analysis (RCA) Team to determine the root cause and contributing factors for the adverse event which occurred on 26^th July 2003. Brief details of the incident are as follows:
Mr Adam BALLARD, (77 08 70.6) presented to the Emergency Department following a road rage incident. The patient was discharged to home where he later died.
As the team is designated as a working group of the CRC the RCA, as a quality assurance, focused review process, the team’s products (e.g. interviews, preliminary and final reports etc) are considered confidential, privileged, and are protected under Section 64D of the SA Health Commission Act.
I look forward to receiving your report by Friday 19^th September 2003.
Note: If in the course of conducting the RCA it appears that the event under consideration were the result of an intentional unsafe act or acts, the team will contact the CEO so that other, administrative review processes may occur, instead. At that point the RCA team will discontinue their work, and the information they have already developed will remain protected as a focused review (s64D).
Thank you for improving patient safety.
(The note in italics is an instance of the facts as found by Sulan J in paragraph 33). As Director of Clinical Governance, Professor Ben-Tovim had the responsibility to concern himself with matters of safety and quality throughout the hospital. As he said in his evidence, the conduct of an RCA would fall within his duties as Director of Clinical Governance and the Clinical Review Committee believed that to be appropriate. His duties were entirely consistent with the aims of the Clinical Review Committee. Thus, it was the practice of the Clinical Review Committee to allow Professor Ben-Tovim as Director of Clinical Governance to decide when to initiate an RCA.

On receipt of the request by the Chief Executive Officer, Professor Ben-Tovim and Ms Ferris convened a review team comprising Professor Ben-Tovim, Ms Ferris, Dr Gilchrist, Dr Bowden and Ms Anni Liwu. None of those persons was a member of the Clinical Review Committee other than Professor Ben-Tovim and Dr Gilchrist. Professor Ben-Tovim explained the reasons for the appointment of each. Ms Ferris was selected as a member of the team to provide technical assistance in safety and quality in health care and in the conduct of the RCA. Dr Bowden held the position of medical consultant at the Flinders Medical Centre. He was selected as a member of the team to provide technical assistance in relation to the conduct of the RCA and in relation to medical practice. Dr Gilchrist held the position of visiting medical specialist and had been a member of the Clinical Review Committee since 1997. Ms Liwu held the position of Nurse Educator at the hospital. She was selected to provide technical assistance in relation to the conduct of the RCA and nursing clinical practice.
Ms Ferris informed all members of the RCA team of the effect of s 64D and asked them to communicate its effect to persons interviewed by them in the course of the review. All of the RCA team had undertaken the training program in Adelaide in May 2003.
The RCA team conducted the review. In the course of that review it examined medical records, interviewed staff at Flinders Medical Centre and prepared flow charts. Professor Ben-Tovim’s evidence was that he had made an oral report to the Chief Executive Officer of the hospital. No document was proved recording the effect of that advice. Professor Ben-Tovim gave evidence that all of the information contained in the documents collated in the course of the review related to the treatment of Ballard. It was either information about the treatment he had received and who had provided that treatment or a discussion of the significance of that information for the purpose of assessing and improving the quality of services provided at the Emergency Department at the hospital.
The evidence of Professor Ben-Tovim was not as clear as it might have been. It is apparent that he was concerned not to make any disclosure in breach of s 64D. It is not possible to determine the extent to which that concern might have influenced what he said in evidence. However, the transcript of the voir dire hearing shows that he was informed that he could disclose matters relating to the procedures of the Clinical Review Committee. His evidence shows that the Committee conducted its affairs very informally. It did not document each step in its proceedings.
There was no evidence of a formal delegation by the committee to Professor Ben-Tovim of the authority to conduct an RCA, nor any evidence of a resolution of the Committee giving any standing authority for a member of the Committee to conduct an RCA, nor was there any evidence of any resolution authorising Professor Ben-Tovim to conduct the RCA following the death of Ballard. Sulan J relied on the lack of evidence as to any authority for Professor Ben-Tovim to conduct the RCA. He said in paragraphs [65] and [66]
65I do not consider that on every occasion when an RCA is conducted that there need be a specific authorisation from the CRC. However, if the CRC determines to authorise a member or members to institute and conduct RCAs, the terms of the authorisation must be clearly stated. The court must be satisfied that the RCA is being conducted pursuant to the authorisation of the CRC.
66If the CRC did authorise Professor Ben-Tovim to conduct the RCA, it would be expected that there would be some evidence of the committee’s involvement in deciding whether to conduct the RCA and the terms under which it was to operate. In this case, it seems as though the CRC had little or no role in deciding whether to conduct this RCA, nor how it should be conducted, the scope of the investigation, those that should be involved and any report on the findings.
Sulan J also relied on the fact that there was little evidence of any control exercised by the Clinical Review Committee over the conduct of the RCA, that there was no evidence or any report to the Clinical Review Committee concerning the death of Ballard, that there was no report to the Health Commission, and that there was no formal report to the Chief Executive Officer of the Flinders Medical Centre. He did find that there had been an informal report to the Chief Executive Officer but found that there was no record of it. He held that the protection of s 64D would apply only where the Clinical Review Committee had authorised and conducted the investigation. He held that the persons conducting the review into the death of Ballard were not authorised pursuant to s 64D and that the review was not conducted by the Clinical Review Committee. For that reason, the information obtained in the course of the review was not confidential information within the meaning of s 64D.
While the presence of resolutions and reports would constitute persuasive evidence that the RCA was conducted as part of the activities of the Clinical Review Committee, the absence of such evidence does not necessarily lead to the conclusion that the RCA was not authorised by the Clinical Review Committee or was not an activity of that Committee. It is plainly desirable that an organisation such as the Clinical Review Committee, which has the benefit of access to confidential information and a statutory privilege preventing disclosure of confidential information disclosed to it, should carefully authorise any activity which is intended to fall within s 64D(1), that is to say, an activity which is either research into the causes of mortality or morbidity or an assessment to improve the quality of specified health services. However, the absence of such resolutions or reports does not necessarily mean that an activity is not of a kind within s 64D(1) entitled to the protection of 64D(3). Regard must be had to the fact that bodies such as the Clinical Review Committee might conduct their business in an informal manner and without strict adherence to legal principle, not conscious of the fact that they might have to establish in a court of law that the activity falls within s 64D. It is, therefore, necessary to examine all relevant facts and not to focus attention simply on the question whether the activity had been formally authorised.
There is an important reason for adopting this approach. Confidential information is not limited to information relating to a health service in which the identity of the patient is revealed but also includes information relating to the health service in which the identity of the person providing the service is revealed. Confidential information, therefore, has the potential to include a wide body of information relating to all hospital staff, doctors, nurses and others, who provided some aspect of health services to the patient. A person conducting an activity which falls within s 64D(1) will be entitled to gain access to confidential information pursuant to s 64D(2). A finding, say, that the activity was not authorised might lead to disclosure of that confidential information. The circumstances of this case provide a clear example. The persons instructed to conduct this RCA were directed to inform the persons they were to interview of the operation of s 64D. That necessarily involved informing the interviewee that confidential information relating to a health service in which the name of the patient or the person providing the service may be disclosed and that the information so disclosed will remain confidential. A finding that the RCA was not an activity of the Clinical Review Committee means that confidential information disclosed in the course of the RCA will no longer be confidential.
The issue in this case was not whether the Clinical Review Committee had formally authorised the RCA into the death of Mr Ballard but whether the RCA was an activity of the Clinical Review Committee, that is to say, whether the RCA team collected the information for that Committee. The evidence of Professor Ben-Tovim was that it did. Although, at times, his evidence might have been more precise, he was not shaken on that issue.
Professor Ben-Tovim deposed as to the practice of the Clinical Review Committee in an affidavit affirmed on 19 April 2006. He said in paragraphs 6 to 8:
6.At the time that this particular RCA was undertaken it was the established practice of the CRC that certain individual members of the CRC could initiate an RCA investigation without convening a full meeting of the CRC. In practice this would generally be myself or the Chair of the CRC, Professor Ross Kalucy. The CRC accepted that as the Director of Clinical Governance with the oversight of safety and quality issues throughout the hospital I had particular expertise in this area. It was expedient to adopt this practice. The issues under consideration would often arise urgently and it was important that the investigation would commence as soon as possible.
7.I have been present at meetings of the CRC where the reports of RCA’s undertaken by myself or other members of the CRC in between meetings were discussed. These reports were generally verbal reports. At no time was any objection raised about the fact that an RCA was undertaken by myself without first referring the matter to a full meeting of the CRC. Indeed, as I have said, it was an established practice.
8. It should be noted that RCA’s were also undertaken by me in response to concerns raised by medical practitioners, nurses or similar sources without first referring the matter to a full meeting of the CRC. No objection to this practice was ever raised with me. The CRC proceeded to consider reports of those investigations on the basis that they were initiated in accordance with established practice.
Professor Ben-Tovim was cross-examined upon his affidavit. However, it was not put to him that the content of those paragraphs was wrong or that he was mistaken about the practice. The challenge to his evidence was directed to the absence of any resolution or other record of the Clinical Review Committee which established that it had authorised the RCA. Sulan J did not accept Professor Ben-Tovim’s evidence. A judge does not necessarily have to accept the evidence of a witness. However, where, as here, that evidence concerns the practice and procedures of a committee within an organisation, the judge should be slow to depart from that evidence, and only where there is good reason to do so. There was no good reason for not accepting Professor Ben-Tovim’s evidence.
In this case, the uncontroverted evidence was
· that the Clinical Review Committee at Flinders Medical Centre was a group or body authorised pursuant to s 64D;
·       that the conduct of an RCA was entirely consistent with the aims and objectives of the Clinical Review Committee, indeed, it was but one method of performing the kind of work which fell within the objectives of the Committee;
·       that two members of the Clinical Review Committee were involved in the RCA, namely Professor Ben-Tovim and Dr Gilchrist;
·       that Ms Ferris was the Executive Officer of the Clinical Review Committee;
·       that Professor Ben-Tovim was Director of Clinical Governance and Ms Ferris was Deputy Director of Clinical Governance;
·       that, on 4 August 2003, Professor Ben-Tovim had received a request from the Chief Executive Officer of the Flinders Medical Centre to conduct an RCA in his role as a member of the Clinical Review Committee;
·       that Professor Ben-Tovim had caused a team to conduct the RCA to be constituted;
·       that at all times Professor Ben-Tovim had authority as a member of the Clinical Review Committee to institute the RCA as an activity of the Clinical Review Committee; and
· that the members of the RCA team were instructed that they could obtain information pursuant to s 64D and were directed to inform interviewees to that effect and to inform interviewees of the confidentiality attaching to the interview by reason of the terms of s 64D.
Although it would have been desirable that the Clinical Review Committee had formally resolved (at some time after the RCA had begun or even after it had been completed) that the RCA was an activity authorised by it, the absence of such a resolution or any like resolution cannot displace the clear evidence of Professor Ben-Tovim that the RCA was always intended to be an activity of the Clinical Review Committee. In addition to these considerations, the statements obtained by the RCA team and the flow charts prepared by them were available to the Clinical Review Committee. All of these factors point to the conclusion that the RCA was an activity of the Clinical Review Committee and, therefore, the statements obtained were protected from disclosure by the terms of s 64D.
The effect of a finding that the RCA was not an activity authorised by the Clinical Review Committee is tantamount to finding that Professor Ben-Tovim was engaged on some frolic of his own unauthorised by the Clinical Review Committee. Given that he was Director of Clinical Governance and also a member of the Clinical Review Committee and the facts listed above, the probabilities are that the RCA was an activity of the Clinical Review Committee.
It is important to note also that there is no evidence that the Clinical Review Committee did not believe that the RCA was being conducted as an activity of the Committee. There was no minute of the Clinical Review Committee stating that the RCA had not been conducted in accordance with the practice of the Committee or had not been authorised by it. Indeed, the evidence is to the contrary. There is the uncontroverted evidence that at a meeting on 31 May 2004 the subpoena, the subject of these proceedings, was considered by the Clinical Review Committee. It was a well attended meeting with most or all members of the Committee present. That part of the minutes of the meeting referring to the subpoena read:
Criminal Court case involving staff of FMC ED. Concerns re coverage provided by s 64D and risks of handing over s 64D documents (RCA investigation). Discussed at length with Crown law. Current state Solicitor-General now representing FMC in Magistrate’s Court.
Changes to legislation may result as an outcome of this case.
Discussion re whether an RCA should have been undertaken knowing that this case would definitely become a court case.
Significant discussion re implications of test of s 64D on role/function of the CRC.
Notwithstanding the somewhat staccato manner and the shorthand nature of the minute, it is readily apparent that the discussion proceeded on the footing that the RCA had been conducted as an activity of the Clinical Review Committee.
Another item of business discussed at the meeting on 31 May 2004 provides some indirect support for the evidence of Professor Ben-Tovim to the effect that, as Director of Clinical Governance, he had the authority of the Clinical Review Committee to institute an RCA as an activity of the Clinical Review Committee. The minute reads
5.1     Management of cases referred to Clinical Governance
Recommendations:
·     The SAC be utilised to identify SAC 1 incidents requiring an RCA.
·     At least 3 members of the CRC be involved in decision making process where it is undecided if a full RCA is to be undertaken. Where this cannot be achieved in a timely manner (within 24 hours of notification) the decision will be left to the Director of Clinical Governance.
·     All cases referred to Clinical Governance where an RCA was not felt to be applicable should be brought to the CRC to facilitate a review.
The expression “SAC” means “Safety Assessment Code”. The Committee resolved at that meeting that SAC 1 matters (which included the death of a patient) should be investigated by an RCA. It is the last two paragraphs of the minute which are relevant. The Committee resolves that in urgent cases the Director of Clinical Governance can authorise an RCA. The Committee then resolved that, where the Director of Clinical Governance believed that no RCA was appropriate, the matter should be referred to the Clinical Review Committee. Although these resolutions were passed some nine months after the RCA into the death of Mr Ballard, they are entirely consistent with Professor Ben-Tovim’s evidence of his belief as to the extent of his authority to institute an RCA as an activity of the Clinical Review Committee.
In reaching his decision, Sulan J also placed some reliance on the fact that Ms Ferris acted with Professor Ben-Tovim in conducting the review and conducted the majority of the interviews. He concluded that her role in doing so “appears to have gone beyond providing technical or administrative assistance”. The conclusion that, by conducting most of the interviews, Ms Ferris provided more than technical administrative assistance is quite unjustified. Section 64D(1) expressly extends its application to persons providing technical, administrative or secretarial assistance in the performance of the functions prescribed in that subsection. The conduct of interviews is clearly one aspect of administrative assistance. It might also come under the heading of secretarial assistance. There is no reason why a person other than a member of the Committee should not conduct interviews and report to the Committee. The Committee comprises medical practitioners. They are busy persons and it is plainly convenient for interviews to be conducted by an assistant, especially a person such as Ms Ferris who was both Deputy Director of Clinical Governance and the Executive Officer of the Clinical Review Committee. If, after receiving reports of the interviews conducted by Ms Ferris, the Committee believed that it was necessary for further interviews, those interviews could be undertaken by a member of the Committee.
Sulan J was also critical of the fact that there does not appear to have been any limit placed on the technical or administrative assistance to be provided to the RCA, that there was no indication of the role of each member of the RCA team, nor any record of the part played by each member of the team in the conduct of the enquiry. Given the fact that s 64D applies to those providing technical and administrative assistance, none of these factors are determinative of the question whether the RCA was an activity of the Clinical Review Committee.
For these reasons Sulan J erred in concluding that the RCA was not conducted by the Clinical Review Committee and that the persons conducting the RCA were not authorised pursuant to s 64D. The RCA following the death of Mr Ballard was an activity of the Clinical Review Committee so that any information obtained in the course of the RCA was confidential information protected from disclosure by s 64D. I would have upheld grounds 2 and 3 of the appeal, if it had been competent.
Questions 1, 2 and 3
I turn to examine the questions 1, 2 and 3 in the case stated. They are in these terms:
1.On the proper construction of s 64D of the South Australian Health Commission Act 1976, is it sufficient to characterise a disclosure as one that is made pursuant to that section if it was made to a person who was not expressly or individually named in any authorisation by the Governor but was at the time
(a) a member of a specified group or body; and
(b) conducting research into the causes of mortality or morbidity or assessing and improving the quality of specified health services within the terms of paragraphs (a) and (b) of s 64D(1)?
2.If the answer to the first question is no, what other conditions must be satisfied in order for the disclosure to have been made pursuant to s 64D of the South Australian Health Commission Act 1976?
3.Is a person who is trained in the conduct of Root Cause Analysis providing technical and administrative assistance when engaged in the performance of the functions referred to in paragraphs (a) and (b) of s 64D(1)?
The form of the questions is curious. It is not entirely clear what is intended to be the subject matter of each question.

The terms of s 64D permit an authorisation to be made in respect of a named person or the members from time to time of a specified group or body. The authorisation made on 17 April 1997 was made in terms which reflected s 64D(1). It is expressed as an authorisation of “the persons listed below and the members from time to time of a group of body listed below”. No individual is named in the authorisation. Instead, the authorisation lists a series of groups or bodies. The Clinical Review Committee was one of those groups or bodies. The Committee is not incorporated. Its membership changes from time to time. It is manifest that s 64D has been drafted on the footing that the membership of bodies or groups the subject of an authorisation will change. Section 64D states in the plainest terms that it applies to persons who are members of the group or body at any time notwithstanding that those persons are not named in the authorisation. It is also necessary that the activity is one of the activities prescribed by paragraphs (a) and (b) of s 64D(1) and the activity is being conducted with the authority of the Clinical Review Committee. A disclosure will be protected by s 64D if it is made to a person who, at the relevant time, is a member of the Clinical Review Committee and is conducting either or both of the activities described in paragraphs (a) and (b) of s 64D(1) on behalf of that Committee or to a person who is providing technical and administrative assistance to a member of that Committee engaged on behalf of the Committee in the performance of either or both of the activities referred to in paragraphs (a) and (b) of s 64D(1). That is what s 64D requires. The question does not pick up each aspect of s 64D. I would answer question 1 in the terms stated in the last sentence but two.
Given the answer to question 1 it is not necessary to answer question 2.
Question 3 is curiously expressed. Its purpose is not clear. It includes a condition which is not to be found in s 64D. Section 64D(1) states that the operation of an authorisation extends to “any person providing technical, administrative or secretarial assistance in the performance of such functions”. Section 64D(1) does not require that the person providing such assistance be a person trained in the conduct of Root Cause Analysis. Plainly, there will advantages if the person providing such assistance has the benefit of that training but there is no requirement to that effect. I would therefore answer question 3 in these terms, yes, but it is not a requirement of s 64D(1) that the person providing technical, administrative or secretarial assistance in the performance of the functions referred to in paragraphs (a) and (b) of s 64D(1) be trained in the conduct of Root Cause Analysis.
It is convenient to postpone consideration of Question 4 until the issues arising under s 350 of the Criminal Law Consolidation Act are determined.
The Operation of Section 350
The case stated raises two questions concerning the operation of s 350 of the Criminal Law Consolidation Act. For present purposes it is necessary to consider only subsections (a1), (1), (2) and (3) of s 350 which are in these terms:
(a1)    In this section –
relevant question means –
(a)     a question of law; or
(b)     to the extent that it does not constitute a question of law – a question about how a judicial discretion should be exercised or whether a judicial discretion has been properly exercised.
(1)A court by which a person has been, is being or is to be tried or sentenced for an indictable offence may reserve for consideration and determination by the Full Court a relevant question on an issue –
(a)antecedent to trial; or
(b)relevant to the trial or sentencing of the defendant,
and if the court may (if necessary) stay the proceedings until the question has been determined by the Full Court.
(2)A relevant question must be reserved for consideration and determination by the Full Court if –
(a)     the Full Court so requires (on an application under this section or under another provision of this Part); or
(b)     the question arises in the course of a trial that results in an acquittal and the Attorney-General or the Director of Public Prosecutions applies to the court of trial to have the question reserved for consideration and determination by the Full Court.
(3)Unless required to do so by the Full Court, a court must not reserve a question for consideration and determination by the Full Court if reservation of the question would unduly delay the trial or sentencing of the defendant.
The first question is whether the terms of s 350(2) are mandatory in their operation in the sense that the court by which a person has been tried has no discretion to refuse to state a relevant question. The second question is whether Question 4 in the case stated is a relevant question within the meaning of s 350(a1).
Sulan J held that Question 4 did not raise an important question of law nor a question of general application. In his view, he had applied settled principle when deciding that the subpoena served a legitimate forensic purpose and, as his decision was confined to the facts of the case, there was no question of general application. In reaching that conclusion, Sulan J followed and applied the observations of Doyle CJ in Application for Reservation of Questions of Law (No 2 of 1999) (1999) 106 A Crim R 423 at [28].
28Bearing in mind that Parliament has not conferred upon the Director of Public Prosecutions a right of appeal against an acquittal, it is reasonable to assume that Parliament envisaged the use of s 350 mainly in relation to relevant questions that raise an important question of law or a question of law of general application. Parliament could not have intended that the Full Court would exercise its powers under s 350 to provide, as a matter of routine, a process for reviewing decisions by trial judges made in the ordinary course of trying a case. The routine use of the power would confer on the Director something like a right of appeal against an acquittal. The terms in which and on which the power is conferred suggest to me that Parliament envisaged it usually being exercised when there is a particular reason to do so. The fact that a relevant question involves an important question of law or a question of law of general application, would be a reason (not necessarily decisive) for doing so. That is not to say that there will not be cases in which an aspect of the case itself, or the impact of a decision upon a case, is a reason for the exercise of the powers under s 350. But I consider that the usual basis for the exercise of the power will be the importance of the relevant question.
The decision in Application for Reservation of Questions of Law (No 2 of 1999) turned on the operation of s 350(2)(a) and not on s 350(2)(b). For the reasons which follow that is a critical factor.
An examination of the terms of s 350 show that the Parliament has in s 350(1) used the word “may” and in s 350(2) use the word “must”. It is clear that the use of the word “may” in s 350(1) confers a discretion. It does so in order to provide a means of preventing criminal trials from being disrupted by appeals seeking a determination of questions of law or a determination as to the exercise of a judicial discretion.
It is also clear that the use of the word “must” in s 350(2) is intended to have a mandatory operation. In Application for Reservation of Questions of Law (No 2 of 1999) at [25] Doyle CJ said that s 350(2)(a) confers on the Full Court a general discretion. With respect, that is true because s 350(2)(a) operates only if the Full Court so requires. However, once the Full Court has ordered that relevant questions be reserved for its consideration and determination, the trial judge has no alternative but to reserve the questions. There is no basis on which the trial judge may exercise a discretion. The effect of s 350(2)(a) is that, once the Full Court has made an order under that provision, the trial judge must comply with it. That conclusion is confirmed by a consideration of the terms of s 352(2) which is a provision to which s 350(2)(a) refers. It provides:
If an appeal or an application for leave to appeal is made to the Full Court under this section, the Full Court may require the court of trial to state a case on the questions raised in the appeal or proposed appeal and the matter will then be dealt with in accordance with the provisions applicable to cases stated in the same way as if the questions had been reserved.
Plainly, once the Full Court requires a case to be stated, the trial judge must comply with the order. The word “must”, therefore, has a mandatory operation.
Given the manner in which s 350(2) is expressed, the word “must” governs both paragraphs (a) and (b). Its mandatory effect, therefore, operates both upon paragraph (b) and upon paragraph (a). For those reasons, if after an acquittal, the Attorney-General or Director of Public Prosecutions applies to have a relevant question or questions referred to the Full Court pursuant to s 350 the trial judge must do so provided they are relevant questions within the meaning of s 350(a1). In contrast with a question antecedent to trial, the reference of relevant questions to the Full Court does not have the capacity to disrupt a trial given that paragraph (b) operates only after an acquittal.
For these reasons, the principle expressed in Application for Reservation of Questions of Law (No 2 of 1999) does not apply to an application made under paragraph (b) of s 350(2). In other words, if an application is made pursuant to paragraph (b) of s 350(2) the trial judge has no discretion and must refer the question without considering whether the relevant question raises an important question of law or a question of law of general application. The only issue is whether the question is a relevant question as defined. For those reasons, Sulan J was bound to refer Question 4 for the consideration and determination of the Full Court unless he concluded that it was not a relevant question.
A Relevant Question?
The next issue is whether question 4 is a relevant question within the meaning of s 350(a1) of the Criminal Law Consolidation Act. The definition has already been quoted in paragraph 59.
One instance of a question of law is where it is necessary to determine whether the facts as have been found bring the case within relevant principles of law: Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47 at 51 per Fullagar J; Hope v Bathurst City Council (1980) 144 CLR 1 at 7. See also Bill Williams Pty Ltd v Williams (1972) 126 CLR 146 at 154. Question 4 asks whether the subpoena to the Flinders Medical Centre should have been set aside for the reason that it served no legitimate forensic purpose and, in particular, that it was not “on the cards” that the material produced in answer to the subpoena would materially assist the defence case. The determination of that question requires the application of legal principles to the facts as found. It is therefore a question of law. If the question of law is hypothetical or is not a question which arose during the trial of the accused, it will not satisfy the definition of a relevant question: Director of Public Prosecutions v B (1998) 194 CLR 566 at 576 to 580. Question 4 concerns an issue which arose in the course of the trial of the accused. It is not a hypothetical question.
For these reasons Question 4 is a relevant question within the meaning of s 350(a1).
Question 4
Question 4 asks:
Should the subpoena to the Flinders Medical Centre have been set aside for the reason that it served no legitimate forensic purpose and, in particular, that it was not “on the cards” that the material produced in answer to the subpoena to the Flinders Medical Centre would materially assist the defence case?
It had been submitted that the documents sought by the subpoena were relevant to the cause of the death of Mr Ballard.
The documents were not relevant if the defence case was that the doctors at the Flinders Medical Centre had failed correctly to diagnose that Mr Ballard was suffering from an injury to his spleen. Where a felonious act causes injury which may result in death, the failure on the part of a medical practitioner to administer treatment which may avert death does not break the chain of causation set in motion by the unlawful act and prevent the offender, if death ensues, from being convicted of murder: R v Bristow [1960] SASR 210 at 217; see also R v Bingapore (1975) 11 SASR 469.
It was contended that the documents were relevant to rule out the possibility that Mr Ballard might have sustained an injury to his spleen at the hospital or after leaving the hospital. The relevant tests are noted in Alister v The Queen (1984) 154 CLR 404 and in Carter v Hayes (1994) 61 SASR 451. See also R v Saleam (1989) 16 NSWLR 14 at 18 where Hunt J said:
In my view, when a trial judge is faced with a subpoena of this kind, he should require counsel for the accused to identify expressly and with precision the legitimate forensic purpose for which he seeks access to the documents, and the judge should refuse access to the documents until such an identification has been made. Sometimes that purpose will not become apparent (even to counsel for the accused who had advised the issue of the subpoena) until the trial has been under way for some time (cf Waind v Hill [1978] 1 NSWLR 372 at 385), and the judge’s initial refusal to permit inspection should always be open to review. The problems which arise when counsel is unable to formulate such a submission with clarity are well exemplified by the decisions in Maddision v Goldrick [1976] 1 NSWLR 651 at 666 and in R v McPhail (Court of Criminal Appeal, 15 December 1988, unreported at 25-28).
In my view, the criterion finally suggested by Gibbs CJ in Alister v The Queen as that which had to be satisfied before a court should inspect documents in relation to which a claim for public interest immunity had been made is appropriate to be applied also when the trial judge has to determine whether access should be granted to documents subpoenaed from the police in relation to which objection has been taken that no legitimate forensic purpose exists for their production. He must be satisfied that it is “on the cards” that the documents would materially assist the accused in his defence.
The test the defendants had to satisfy was whether it was on the cards that the documents would materially assist the defence. This was not the test used by Sulan J. Although there had been disclosure to the defendants of the file notes from the Flinders Medical Centre and results of an x-ray taken at the hospital that night, the autopsy showed that Mr Ballard had suffered a fracture of the rib which had not been diagnosed on the x-ray taken at the hospital. The defendants also had the notes of the pathological investigation. The RCA had no means of knowing what had occurred after Mr Ballard had been discharged. The RCA investigation would not, therefore, throw any light on the question of whether he had suffered injury after he had been discharged from the hospital. There was no suggestion either in the file notes of the hospital or in any other source that any untoward incident had occurred at the hospital. The defendants were, therefore, engaged in a fishing exercise. In the context of the forensic issues and the information which was available, it was not on the cards that the documents would materially assist the defence. That fact that the Flinders Medical Centre had supplied its hospital notes and other medical records relating to the admission and treatment of Mr Ballard does not necessarily mean that the notes of the RCA should be provided to the defendants. That is because the RCA does not relate directly to notes of the treatment provided to Mr Ballard. The RCA was concerned with different issues and included confidential material.
For these reasons, the answer to Question 4 is, yes.
The Terms of the Case Stated
It is necessary to criticise the form of the case stated. At the relevant time, s 351(1) of the Criminal Law Consolidation Act provided:
(1)When a court reserves a question for consideration and determination of the Full Court, the presiding judge must state a case setting out –
(a)     the question reserved; and
(b)     the circumstances out of which the reservation arises; and
(c)     any findings of fact necessary for the proper determination of the question reserved.
Scant regard was had to those provisions.
The recital of facts contains facts which are not necessary for the determination of the question. Many of the facts are more related to the issues in the purported appeal than the case stated. In addition, instead of findings of fact, the case stated includes substantial extracts of evidence as well as of the submissions of counsel and the written outlines of submissions.
The case stated procedure is, among other things, a useful means by which to determine important questions which would not be able to be determined because an accused has been acquitted. Its value lies in the fact that it may prevent errors of law becoming entrenched: R v Foggo; ex parte Attorney-General [1989] 2 Qd R 49 at 53. It enables short but important points to be determined before a potentially wrong decision gains wide circulation: Attorney-General’s Reference(No 1 of 1975) [1975] QB 773 at 778. The purpose is to determine questions of law not to decide disputed questions of fact. Ultimate facts are to be stated, not primary or evidentiary facts: Merchant Service Guild of Australasia v Newcastle & Hunter River Steamship Co Ltd (1913) 16 CLR 591 at 622. The court will not draw inferences of fact from other facts stated: ibid; see also Mack v Commissioner of Stamp Duties (NSW) (1920) 28 CLR 373 at 381. That is why s 351(1) requires finding of fact. These latter principles have been enunciated in civil cases. They apply with equal force to a case stated in the criminal jurisdiction: R v Rigby (1956) 100 CLR 146 at 150-151 where the principles are conveniently collected. See also Industrial Equity Ltd v Commissioner for Corporate Affairs [1990] VR 780 at 783-784; Director of Public Prosecutions v B (1998) 194 CLR 566 at [12]; Australian National Railways Commission v Beesley (1999) 73 SASR 414 at 420-421. This case stated failed to comply with those principles which are implicit in the terms of s 351(1).
Furthermore, it is entirely inappropriate to include transcript of submissions and written outlines of submissions.
In addition, the point of law on which the determination is sought should be identified with precision: Director of Public Prosecutions v B (supra). In this case, Questions 1, 2 and 3 were not entirely clear and were tantamount to questions asking what the terms of s 64D might mean. There is a real question whether that is a suitable form of question on a case stated. If the question is expressed in vague or ambiguous terms, the court may decline to consider it or at best send it back for amendments pursuant to s 351(2): R v Douglas (1991) 1 Qd R 386. Either course is manifestly wasteful of time and money.
Conclusions
For the reasons already expressed, I determine the issues in the following terms.
1The appeal from Sulan J was incompetent and should, therefore, be dismissed.
2Subject to the incompetence of the appeal, a person served with a subpoena to produce documents who has made an application to set aside the subpoena or limit its operation is entitled to apply for leave to appeal for an adverse order on that application.
3All of the questions the subject of the Attorney-General’s application, including Question 4, were relevant questions within the meaning of s350(a1) of the Criminal Law Consolidation Act.
4Sulan J was bound by the terms of s 350(2) of the Criminal Law Consolidation Act to reserve to the Full Court for its consideration and determination all of the questions the subject of the Attorney-General’s application made pursuant to s 350(2).
5The questions reserved for the consideration and determination of this Full Court should be answered as follows
1.A disclosure will be protected by s 64D if it is made to a person who, at the relevant time, is a member of the Clinical Review Committee and is conducting either or both of the activities described in paragraphs (a) and (b) of s 64D(1) on behalf of the Committee or to a person providing technical or administrative assistance to a member of the Committee engaged on behalf of the Committee in the performance of either or both of the activities referred to in paragraphs (a) and (b) of s 64D(1).
2. Not necessary to answer.
3.Yes, but it is not a requirement of s 64D(1) of the Health Commission Act that the person providing technical, administrative or secretarial assistance in the performance of the functions referred to in paragraphs (a) and (b) of s 64D(1) be trained in the conduct of Root Cause Analysis.
4. Yes.

On a natural reading, the sub-section contemplates that it may be either an individual person, or a group or body of persons, who may be given the relevant authority. It seeks to have the section operate in both such cases. When it is a group which is authorised, it is the members of the group from time to time who are subject to the protections and prohibitions contained in s 64D.
Secondly, this view is consistent with the purpose of s 64D outlined by the Minister at the time of its introduction in the SAHCA. Section 64D in its present form was introduced into the SACHA by the South Australian Health Commission Act Amendment Act 1989 (SA). Hansard records the Minister making the following statements to the House of Assembly on 5 April 1989 in the course of the second reading speech.
… The amendments will permit specified persons and groups to be authorised by the Governor to have access to information for the purpose of assessing and improving the quality of specified health services. This will allow for quality assurance committees to be so authorised.
Confidential information may still be disclosed to a person to whom the provision applies without breach of any law or any principle of professional ethics. However, a person must not divulge the confidential information, whether obtained directly or indirectly, in any circumstances, including proceedings before any court, tribunal or board. This will provide a statutory protection to persons giving information to authorised persons and committees. It will encourage them to be more frank about the information they supply than they might have been had the protection not been there. In order to prevent any abuse of such privilege it is proposed that any person or committee seeking protection must first be authorised by the Governor.
It is intended that such authorisations would be gazetted and would extend to Government funded hospitals, private hospitals and any other properly constituted body carrying out quality assurance of clinical practice or competence. In granting an authorisation the Governor would need to be assured that a committee was properly established for the purpose of quality assurance and reported to the board of directors of the hospital or other appropriate body. [Emphasis added]
It can be seen from the passages emphasised that the Minister contemplated that it would be a nominated individual, or a specified group, which would be authorised to have access to the confidential information. The Minister specifically contemplated the establishment of committees such as quality assurance committees, and, further, that before such a committee was authorised, the Governor would need to be assured that the committee was properly established for the purposes of quality assurance. In addition, the group or body so authorised was to have a reporting obligation to an appropriate body such as the Board of Directors of a hospital. This view of the matter is quite inconsistent with the submission of the FMC and the Attorney-General to the effect that the reference to a group or body in s 64D(1) was simply a means of identifying persons who were authorised as a class for the purposes of s 64D.
The third consideration is related to the second. It derives from the history of s 64D. Section 64D was first introduced into the SAHCA by the South Australian Health Commission Act Amendment Act 1987 (SA). Section 64D(1) at that time provided that the Governor may authorise a person or “a class of persons” to conduct research into the causes of mortality and morbidity in the State. It is arguable when a class of persons was authorised, any member of that class had the relevant authority. However, that terminology was expressly abandoned in 1989. It is evident from the second reading speech as well as the terms of s 64D(1) itself that Parliament did not intend that a class of persons, or that the members from time to time of a particular class, should have the relevant authority. The submission of FMC and the Attorney-General, in my opinion, would have s 64D(1) construed as though it still referred to a class of persons.
Fourthly, if the construction urged by FMC and the Attorney-General was correct, it would mean that there would be as many authorisations of access to confidential information as there were members from time to time of a specified group or body. Each member could operate independently of the other. Each could conduct his/her own research or service evaluation. Each member of a group could act without reference to any other member of a group. They may not have anything in common in their research or assessment apart from their membership of the specified group or body. There could be as many requests to hospital staff for confidential information for a s 64D(1) purpose as there were members of the group. It is not readily to be supposed that Parliament intended this consequence. It is much more sensible, in my opinion, to regard s 64D as contemplating that it is the specified group or body which would seek access to the information, and that disclosure to the group’s members for that purpose would attract the protection and prohibitions contained in s 64D.
Accordingly I would hold that s 64D(1) contemplates either an individual or a specified group or body being authorised by the Governor to have access to confidential information. When an individual is authorised, s 64D applies to that individual. When it is a group or body which is authorised, s 64D applies to the members from time to time of that group or body when carrying out the function of that group or body.
This construction of s 64D(1) does not mean that the disclosure of the confidential information must always be to the group or body as such. There is no reason why the group or body could not delegate an individual member or members the task of obtaining, on its behalf, the relevant information. This will often be the practical way for the group or body to proceed.
Question One omits altogether reference to the requirement for the group or body of which the person is a member to have been authorised by the Governor. It also omits any reference to the group or body carrying out its authorised function. Both of the omitted features are essential conditions to the application of s 64D. Accordingly, I would answer Question One in the negative.
In the course of the hearing of the questions of law, a question arose as to whether the written authorisation of the Governor in this case was in the terms contemplated by s 64D. In the view I take of the matter, it is unnecessary to consider this question and I refrain from doing so.
Question Two:
The second question is in the following terms:
If the answer to the first question is no, what other conditions must be satisfied in order for the disclosure to have been made pursuant to s 64D of the South Australian Health Commission Act 1976?
Although I would answer “No” to the first question, it is inappropriate, in my opinion, to answer this question. It seeks a mere advisory opinion unrelated to the circumstances of this case. The question seeks to have this Court stipulate the variety of circumstances, or permutations of circumstances, in which s 64D may have operation.
There are limitations on the use of the procedure contained in s 350(2) of the CLCA for the referral of questions of law to this Court. I agree, with respect, with the reasons of Debelle J concerning the circumstances in which it is appropriate for the case stated procedure to be used. I refer also to the judgment of the Chief Justice in Application for Reservation of Questions of Law (No 2 of 1999)[13] and to my own judgment in Rapson v WorkCover Corporation[14]. The authorities make it plain that a case stated is not to be used for the purpose of giving a mere advisory opinion, nor a determination which is unrelated to the circumstances of a particular case.
[13] [1999] SASC 260 at [38]; (1999) 106 ACrimR 423 at 431.
[14] [2007] SASC 172.
The inappropriateness of Question Two can be demonstrated in another way. A judge is required to reserve a question for the consideration of this Court on the application of the Attorney-General or the Director of Public Prosecutions (“DPP”) only if it is a relevant question which “arises in the course of a trial”.[15] Question Two did not arise in the course of the trial of the accused. The Attorney-General was not entitled to have the question referred to this Court.
[15] CLCA s 350(4).
I would decline to provide an answer to Question Two.
Question Three:
Question Three is in the following terms:
Is a person who is trained in the conduct of Root Cause Analysis providing technical and administrative assistance when engaged in the performance of the functions referred to in paragraphs (a) and (b) of s 64D(1)?
In his reasons, Debelle J has summarised the investigative process known as Root Cause Analysis. It is unnecessary to repeat the details of that process.
Like Debelle J, I regard the third question as curious. It is doubtful that it raises a question of law. The question asks whether a person trained in Root Cause Analysis is providing technical and administrative assistance when engaged in the performance of the functions referred to in paragraphs (a) and (b) of s 64D(1).
The question could as easily have inquired about the position of a person trained in medicine, or in law, or in forensic inquiry, or in systems analysis, or in design. In each case, the answer would be the same. It would depend upon the factual circumstances, including the circumstances of the particular research (s 64D(1)(a)) or assessment (s 64D(1)(b)), the circumstances in which the particular person became involved in that research or assessment and the nature and quality of the work or services provided by the person for that purpose. I do not think that one can be any more specific than that. The answer which I would make to Question Three, therefore, is: it depends upon the circumstances of each case.
Question Four:
The fourth question is in the following terms:
Should the subpoena to the Flinders Medical Centre have been set aside for the reason that it served no legitimate forensic purpose and, in particular, that it was not ‘on the cards’ that the material produced in answer to the subpoena to the Flinders Medical Centre would materially assist the defence case?
In the hearing before this Court, it was accepted that the last word in the question should be omitted.
The judge referred Question Four for the consideration of this Court despite his doubts that it was appropriate to do so. The judge also had doubts as to whether he was required by the provisions of s 350 of the CLCA to refer the question. The judge said:
The Solicitor-General submitted that when the Attorney-General or the Director of Public Prosecutions applies to the Court of trial to reserve a question for consideration and determination by the Full Court, the Court of trial is required to so refer the question. In other words, s 350(2) is mandatory in its terms.
If s 350(2) of the Act is mandatory, then the Full Court can determine whether the question is properly one which requires to be answered. Accordingly, I have agreed to include Question 4 in the case stated. However, in my opinion, it is not a question which involves a general principle which has wide application, nor does it raise an important question of law. My decision as to relevance was confined to the facts of the case. No question of principle arose.[16]
[16] R v C, DR & Ors [2006] SASC 307 at [32]-[33].
The argument before the Full Court proceeded on the basis that it was s 350 of the CLCA before its amendment with effect from 4 September 2006 which was applicable.[17] I will proceed on the same basis. The relevant portions of s 350 are contained in the reasons of Debelle J.
[17] Statutes Amendment (New Rules of Civil Procedure) Act 2006 (SA) s 94.
I agree with the reasons of Debelle J for concluding that when the Attorney-General or the DPP apply to have a relevant question which has arisen in the course of a trial resulting in an acquittal reserved for the consideration of the Full Court, a trial judge has no discretion about the referral. Providing that the question sought to be referred is a relevant question (as defined) and did arise in the course of the trial, the terms of s 350(2) require the question to be reserved.
I also agree with Debelle J that Question Four is a relevant question as defined. That means that I can turn to the issue raised by Question Four.
As already noted, the judge over-ruled the objection to production by the FMC on the basis that the documents sought would not serve any legitimate forensic purpose in the trial. He did so because he was satisfied that the information obtained in the course of the Root Cause Analysis investigation “must, by [its] very nature, have a bearing on the issues in the case and potentially have evidentiary value”.[18] The judge accepted that the question of whether the conduct alleged against the accused caused the death of the victim was a live issue in the case. He also considered it likely that the investigation by the Root Cause Analysis team was likely to include material obtained from persons who were likely to be witnesses in the trial.
[18] R v C, DR & Ors [2006] SASC 158 at [20]; (2006) 244 LSJS 212.
The test to be applied when objection is raised to production of documents in answer to a subpoena on grounds of relevance is well established. The documents must have some evidentiary value.[19] The court must be able to conclude that the documents are sought for a legitimate forensic purpose.[20] Mere “fishing” expeditions are not permitted.[21] It must be “on the cards” that the documents will materially assist the defence.[22]
[19]Supreme Court Act 1935 (SA), s 35 and re Carter v Hayes (1994) 61 SASR 451 at 453 per King CJ.
[20] Carter v Hayes (1994) 61 SASR 451 at 453 per King CJ.
[21] Alister v The Queen (1984) 154 CLR 404 at 414 per Gibbs CJ.
[22] Ibid.
In Alister, Gibbs CJ gave as an example of a legitimate forensic purpose, the obtaining of a prior statement by an important prosecution witness. Gibbs CJ said:
If, for example, it were known that an important witness for the Crown had given a report on the case to ASIO, it would not be right to refuse disclosure simply because there were no grounds for thinking that the report could assist the accused. To refuse discovery only for that reason would leave the accused with a legitimate sense of grievance, since he would not be able to test the evidence of the witness by comparing it with the report, and would be likely to give rise to the reproach that justice had not been seen to be done.[23]
[23] Alister v The Queen (1984) 154 CLR 404 at 414-5.
In Carter v Hayes, King CJ too considered statements made by a necessary or likely witness to be the proper subject of a subpoena as being within a class of documents which may provide material of value for cross-examination. King CJ said:
The material sought must possess “evidentiary value” in some sense. The same idea is, I think, expressed in the judgments of the Court of Criminal Appeal, New South Wales, in R v Saleam (1989) 16 NSWLR 14 by the use of the expression “legitimate forensic purpose”.
I have no doubt that each of the items sought in the subpoena possess evidentiary value in the relevant sense. … The remaining items relate to statements made by necessary or likely witnesses and are therefore proper subjects of a subpoena duces tecum. … A document may have evidential value, in my opinion, not only because it is admissible in evidence, but also, even if it is not so admissible of itself, because it provides material of value for cross examination or discloses ‘information which may be established in some other admissible form’. [Citations omitted][24].
[24] Carter v Hayes (1994) 61 SASR 451 at 453.
Before this Court the Solicitor General submitted that the judge should have found that the subpoena did not seek documents for a legitimate forensic purpose for a number of reasons.
First, it was submitted that the documents were not relevant to any causation issue in the trial. Reference was made to R v Bristow,[25] R v Smith,[26] and to R v Bingapore.[27] Those cases are authority for the proposition that when a felonious act causes injury which may result in death, the failure of any doctor or hospital to administer treatment which may avert the death, does not break the chain of causation set in motion by the unlawful act. Relying upon those authorities, it was submitted that any omission to treat Mr Ballard at the time of his admission to the FMC even if (which the FMC disputed) that omission was negligent, was irrelevant to an issue in the trial. This submission, so far as it goes, may be accepted but it is not, in my opinion, conclusive of the issue of causation at the trial in this case. That issue was not confined to whether the conduct of the hospital amounted to an intervening act. The prosecution case was that the deceased had sustained the injuries from which he died in the course of an assault by the accused. It had to prove the fact of the injury and that the death of Mr Ballard had resulted from that injury. These matters had not been conceded by each of the accused.
[25] [1960] SASR 210.
[26] [1959] 2 QB 35.
[27] (1975) 11 SASR 469.
The deceased died from a rupture of his spleen. It was relevant for the defence to explore whether or not the deceased had suffered a rupture of the spleen at all at the time of the assault. It was also relevant for the defence to explore the possibility that the deceased had sustained further injury after leaving the FMC. This was not mere fishing. The material obtained at the preliminary examination indicated that at autopsy the deceased had been found to have a fractured rib. However, the existence of such a fracture had not been identified during the deceased’s attendance at the FMC. This gave rise to the possibility that the deceased may have suffered some further injury after discharge from the FMC.
In these circumstances, any material which bore on the history given by the deceased at the FMC, the observations of him, the results of any medical tests, his progress, and his condition at time of discharge were all relevant. It was reasonable for the judge to suppose that a Root Cause Analysis conducted approximately one week after the death would include documentation bearing upon these matters.
The Solicitor General submitted next that the accused had already been supplied with sufficient material to allow all these issues to be explored. As part of the pre-trial prosecution disclosure, the accused had been provided with the FMC case notes prepared at the time of Mr Ballard’s admission, the police witness statements taken from the attending nurses and the examining doctor, a medical report written by the examining doctor, and a record of interview by the police of the examining doctor. In addition, the accused had been able to cross examine the examining doctor at the committal proceedings.
It was submitted that with this material, and by means of the cross examination of the examining doctor, the accused had been able to explore fully any issue of causation. There was no reason, it was said, to think that the Root Cause Analysis investigation, even if it did include a statement from the examining doctor or the attending nurses, would include any additional material.
I am unable to accept this submission. I refer again to the passages in the judgments of Gibbs CJ in Alister and of King CJ in Carter v Hayes concerning the value to the accused of having access to a prior statement from an important prosecution witness. In addition, it is well known that it is not every observation or relevant communication or diagnostic consideration which comes to be recorded in hospital notes. Doctors and nurses attending a patient are frequently able to provide a good deal of additional information concerning a patient’s treatment. It was reasonable for the judge to suppose that in the course of the Root Cause Analysis conducted about one week after the death of Mr Ballard, the examining doctor and the attending nurses may have been able to provide additional information which did bear, in a relevant way, on issues arising in the trial.

The submission of the FMC had this curious aspect. It was accepted that it was relevant for the accused to have the FMC case notes relating to the deceased. However, it was disputed that it was relevant for the accused to have documents which were likely to incorporate references to much of the same material and which may involve some analysis of that material, even though such documents had been prepared within the FMC and apparently only one week or so after the death of Mr Ballard.
Having regard to these matters, my opinion is that the judge was correct in refusing to set aside the subpoena on the ground that it served no legitimate forensic purpose. I would answer the fourth question in the negative.
Conclusion on Questions Reserved
I would answer the questions reserved for the consideration of this Court in the following way:

Question One

On the proper construction of s 64D South Australian Health Commission Act1976, is it sufficient to characterise a disclosure as one that is made pursuant to that section, if it was made to a person who was not expressly or individually named in any authorisation by the Governor but was at the time:

(a) a member of a specified group or body; and

(b) conducting research into the causes of mortality or morbidity or assessing and improving the quality of specified health services within the terms of paragraphs (a) and (b) of s 64D(1)?

Question Two

If the answer to the first question is “No”, what other conditions must be satisfied in order for the disclosure to have been made pursuant to s 64D of the South Australian Health Commission Act 1976?

Question Three

Is a person who is trained in the conduct of Root Cause analysis providing technical and administrative assistance when engaged in the performance of the functions referred to in paragraphs (a) and (b) of s 64D(1)?

Question Four

Should the subpoena to the Flinders Medical Centre have been set aside for the reason that it served no legitimate forensic purpose and, in particular, that it was not “on the cards” that the material produced in answer to the subpoena to the Flinders Medical Centre would materially assist the defence case?

No.

Inappropriate to answer.

It depends upon all the circumstances.

No.