Tasmania v T J G - [2021] TASSC 47

[2021] TASSC 47

COURT: SUPREME COURT OF TASMANIA

CITATION: Tasmania v T J G [2021] TASSC 47

PARTIES:  STATE OF TASMANIA
  v
  G, T J

FILE NO:  642/2019
DELIVERED ON:  1 September 2021
DELIVERED AT:  Burnie
HEARING DATES:  20 and 31 August 2021
JUDGMENT OF:  Pearce J

EDITED REASONS FOR RULING DELIVERED ORALLY

CATCHWORDS:

Evidence – Adducing evidence – Documents – Requests to produce – Application by defendant for production of documents by third party in criminal proceedings – Appropriate vehicle for making an application – When further production or inspection should be ordered – Court prohibited from ordering production by statutory provision.

Criminal Rules 2006 (Tas), r 3H(3)(f).
Criminal Procedure (Attendance of Witnesses) Act 1996 (Tas), ss 10, 18.
National Disability Insurance Scheme Act 2013 (Cth), s 67G.
Aust Dig Evidence [1062]

REPRESENTATION:

Counsel:
           State:  P Sherriff
           Defendant:  P O'Halloran
  L Shillito
Solicitors:
           State:  Director of Public Prosecutions
           Defendant:  Tasmanian Aboriginal Legal Service

Judgment Number: [2021] TASSC 47
Number of paragraphs: 16

Serial No 47/2021
File No 642/2019

STATE OF TASMANIA v T J G

REASONS FOR RULING PEARCE J

(Delivered Orally) 1 September 2021

The defendant is charged with one count of rape. His trial is to commence on 6 September 2021. This ruling concerns an application made on behalf of the defendant that the organisation Family Based Care, Tasmania produce to the Court certain documents in its possession. The documents concern both the defendant and the complainant. It is not a ruling concerning the prosecution duty of disclosure. Notice of the application was given to Family Based Care. Production of some of the documents sought by the defendant relating to his employment with that organisation is not objected to and so no ruling is necessary as to those. They have already been produced and may be inspected by counsel for the defendant. However, the application also seeks production of documents concerning "care planning and care delivery" to the complainant, including "any behavioural support plans". Through the Chief Executive Officer, Mr Doherty, Family Based Care objects to production of documents of that description. The State also opposes an order that such documents be produced.
The prosecution case is that on 3 September 2018 the defendant had oral sexual intercourse with the complainant, a male then aged 17, without the complainant's consent. It is alleged that the defendant forced the complainant onto the bed in the complainant's unit and sucked his penis.
The complainant made a statutory declaration on the day of the alleged crime in which he described the allegation. In the declaration he disclosed that he has high functioning autism spectrum disorder. He lived in a unit and was assisted by a support worker engaged by Family Based Care Tasmania. At the time, the defendant was the support worker. The complainant was interviewed by the police again on 18 December 2018 and once again described that he has high functioning autism. The defendant submits that documents in the category it identifies ought to be produced because they may reveal matters which are relevant to the credibility of the complainant.
It is first appropriate that I address some procedural matters. The application was first made pursuant to the Criminal Rules 2006, r 3H(3)(f). Rule 3H(3) provides:
"Where a defendant has been committed for trial and an indictment has been filed with respect to him or her, a judge may do one or more of the following:
(a)take a plea from the defendant;
(b)make a preliminary proceedings order;
(c)remand the defendant in custody or admit him or her to bail to appear before the Court or justices on a specified day;
(d)adjourn the directions hearing;
(e)order the delivery by Crown Counsel of written notice identifying the witnesses whom Crown Counsel intends to call at the trial and setting out the evidence proposed to be adduced from each witness;
(f)make any order necessary or convenient to facilitate the matters referred to in paragraphs (a), (b), (c), (d) and (e), to give effect to any relevant law or legislative instrument or to ensure the fair and expeditious conduct of the trial."
The defendant's position is that an order requiring production of documents is an order necessary to ensure the fair and expeditious conduct of the trial. I do not see that the general rule is the appropriate vehicle for the making of the application because of the provisions of the Criminal Procedure (Attendance of Witnesses) Act 1996, s 10. That section relevantly provides that the Registrar must, on application by an accused person, cause a final notice to be issued to an intended witness requiring him or her to attend in a criminal proceeding to give evidence and to produce such documents, articles or things as may be specified in the notice. In one sense, the application does not fit precisely the circumstances of this case, because it is not intended that Mr Doherty be a witness at the trial. What is intended is that the documents be produced because that they may lead to evidence relevant to issues in the case. In some jurisdictions production of documents may be achieved by subpoena. However s 18 of the Criminal Procedure (Attendance of Witnesses) Act, abolished the issue and use of a subpoena ad testificandum and a subpoena duces tecum in criminal proceedings. What is to be implied from that provision is that Parliament intended that notices issued under s 10 be the appropriate means of securing the attendance of persons and the production of documents in criminal proceedings.
Accordingly, the defendant also made application to the Registrar under s 10 of the Criminal Procedure (Attendance of Witnesses) Act, and that application has been referred to me.
When an application is made under s 10, the Registrar must issue the notice. However, the notice requires the person to whom it is addressed to produce the documents to the Court. When inspection of the documents is objected to then, in my view, a requirement that there be further production or inspection should not be made unless three things are established:
(a)the documents are relevant, or possibly relevant, to the issues in the case, may possibly raise a new relevant issue, or hold out a real prospect of providing a lead which goes to relevant issues;
(b)there is no statutory or other reason that the documents should not be produced; and
(c)production of the documents is necessary to ensure the fair and expeditious conduct of the trial.
Documents may be relevant to the issues in the case if they contain, for example, material that tends to reflect materially on the credibility of prosecution witnesses, or material that tends to weaken the prosecution case or assist the defence case: R v Keogh (No 2) [2015] SASC 180 at [54].
It may be assumed for the purposes of this ruling that the complainant is a critical witness for the State, and that a jury may not find the defendant guilty of the crime he is charged with unless it is satisfied beyond reasonable doubt of the truth of the complainant's evidence. The trial papers reveal that the State relies on evidence of complaint, but the credibility of the complainant's evidence at trial will be a crucial matter for the jury. Counsel for the defendant submits that the documents may reveal more details of the complainant's diagnosis, how it may affect his capacity to perceive the world accurately, and how it may impact on his ability to accurately recall events. It is also contended that the documents may reveal whether anger management was an aspect of his diagnosis for which care was to be provided.
I think that it is also relevant that the complainant is a person who has been assessed as having a communication need within the meaning of that term in the Evidence (Children and Special Witnesses) Act 2001, s 7F, that is, that the quality or clarity of his evidence may be significantly diminished by his ability to understand, process or express information. As a result, an intermediary appointed under that legislation will be used as he gives evidence at trial, and the parties have an intermediary assessment report prepared by an experienced mental health nurse which provides some information about the nature and extent of his communication need.
I am not persuaded that disclosure of the documents is necessary for the fair and expeditious conduct of the trial. There is already disclosure of the complainant's condition and some of its effects as relevant to his ability to communicate. The matters of relevance specified by the defendant are primarily a matter of diagnosis and opinion. It seems to me very likely that production of the documents could only, at this stage, be material for cross-examination. There is already material which may be the subject of cross-examination. Moreover, matters of diagnosis are likely to be subject to privilege which could only be waived by the complainant. Questions of privilege have not been raised.
However even if the documents are relevant in the way I have explained, there may be another reason, for example a privilege or statutory prohibition, which means that production should not be required. In this case I have concluded that, whichever view I take in relation to such matters, I am prohibited from ordering production by operation of the provisions of the National Disability Insurance Scheme Act 2013 (Cth).
Under the NDIS Act, the Commonwealth agency may provide assistance in the form of funding to persons or entities for the purpose of enabling those persons or entities to assist people with disability: s 14. Under Part 2 of that Act persons with a disability who meet the eligibility criteria and who are accepted as participants, are provided with funding for supports in accordance with a plan: s 37. The plan includes a statement of the supports to be provided to the participant: s 33(2). Funding under the plan is managed by either the participant, a registered plan management provider, the Agency or the plan nominee: s 42. A person or entity which provides supports to a participant under the Scheme must be registered by the Agency: Part 3 and Part 3A of Chapter 3.
It may be assumed for the purpose of this ruling that the care provided to the complainant by Family Based Care is funded by the NDIS, and that Family Based Care is a registered provider for that support. Chapter 4 of the NDIS Act is entitled "Administration", and Part 2 contains provisions related to privacy. In that Part, three categories of information are addressed. Division 1 concerns protection of information held by the Agency. Division 2 concerns protection of information held by the NDIS Quality and Safeguards Commission. Neither of those Divisions could have application here. However Division 3 is entitled "Information generally" and contains a provision, s 67G, relevant to the defendant's application. It provides:
"67G Protection of certain documents etc. from production to court etc.
A person must not, except for the purposes of this Act or the Royal Commissions Act 1902, be required:
(a)to produce any document in his or her possession because of the performance or exercise of his or her duties, functions or powers under this Act; or
(b)to disclose any matter or thing of which he or she had notice because of the performance or exercise of such duties, functions or powers;
to a court, tribunal, authority or person that has power to require the production of documents or the answering of questions."
The application by the defendant for production of documents is not for the purposes of the NDIS Act or under the Royal Commission Act 1902 (Cth). Thus I may not require production or disclosure of any document which is in the possession of any person "because of the performance or exercise of his or her duties, functions or powers under the Act". Because documents and information held by the Agency and the Commission are dealt with by Divisions 1 and 2, it is plain that s 67G applies to persons other than within those two bodies exercising duties or functions under the Act. Regardless of whether s 67G may apply to persons within the Agency or the Commission, the reference to a person in that provision must extend to all persons. If the Parliament had intended that the operation of s 67G be confined to persons with the Agency or the Commission, it would have said so. The reference to a person includes a body politic or corporate, as well as an individual: Acts Interpretation Act 1901 (Cth), s 2C. Section 67G is drafted in very broad terms. The question I must ask is whether, if they exist, documents relating to the care planning and care delivery by Family Based Care to the complainant are in its possession because of the exercise of its functions as a registered provider of supports to the complainant in accordance with the plan in place for him as a participant in the NDIS. I have concluded that the question may only be answered in the affirmative. If there is a document relating to care plan or care delivery, it is in possession of Family Based Care because of the exercise of its duties, functions and powers under the Act. Section 67H preserves the entitlement to make such information the subject of an application under the Freedom of Information Act 1982 (Cth). However, otherwise I have concluded that s 67G prohibits an order requiring production of the documents requested.
For those reasons I refuse the defendant's application that I require Family Based Care to produce the specified documents.