The Queen v Crisp (Ruling No. 1)
[2016] VCC 369
•18 March 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-02208
| THE QUEEN | Plaintiff |
| v | |
| OWEN CRISP | Defendant |
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JUDGE: | Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 March 2016 | |
DATE OF RULING: | 18 March 2016 | |
CASE MAY BE CITED AS: | The Queen v Crisp (Ruling No. 1) | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 369 | |
REASONS FOR RULING
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Subject: CRIMINAL LAW
Catchwords: Application for leave to issue a subpoena pursuant to s.32C of the Evidence (Miscellaneous Provisions) Act 1958
Ruling: Application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms Duckett | OPP |
| For the Accused | Mr Miller | Wards Barristers & Solicitors |
HER HONOUR:
1 On 23 February 2016, the accused made application for leave to issue a subpoena, that is, compel the production of, documents likely to contain a confidential communication.
2 I made an order to receive under section 32C(6) Evidence (Miscellaneous Provisions) Act material from a psychologist, Ms Opperman, in respect of both complainants in this matter, who are children. C and S have alleged that the accused sexually assaulted them.
3 That material was received by the court and I perused the material for the purpose of determining the application for leave.
4 As explained in court on 15 March, the material showed that complainant C had not seen the psychologist before she made a disclosure to her mother of the allegation of sexual abuse by the accused, nor before recording her evidence in chief by way of the process provided for in Division 5 Chapter 8 of the Criminal Procedure Act (VARE). As the basis for the application was to access any material in the psychologist’s file which went to the development of the allegations, there was no material of substantial probative value, and so the application was refused in respect of C.
5 I also explained in court on 15 March that for the other complainant, S, it was not clear on the file when she attended the psychologist relative to making her complaint to her mother or recording her VARE[1] on 15 June 2015. As a result, I had taken the unusual step of contacting the psychologist through my Associate, but solely for clarification as to dates of attendance. As at 15 March, there had been no response, and so the ruling was held over until receipt of the information.
[1] Division 5 Chapter 8 of the Criminal Procedure Act.
6 I advised that the ruling would be provided via email to the parties, and that if leave was granted to issue a subpoena, I would move directly to consider whether the test in section 32D was met for the production of documents, without another hearing, unless requested, as the submissions of the parties would remain the same, given that they would not have had access to any of the protected evidence at that time. Both counsel agreed to that course.
7 The necessity for such a course lies in the fact that the court will not be sitting from Monday 21 March to Wednesday 30 March and the trial is listed for the Bairnsdale circuit commencing 30 March.
8 Having considered the material in light of the information received from Ms Opperman which clarified dates, I am satisfied on the balance of probabilities that the test in s32D(1) is met. I therefore grant leave for a subpoena to be issued. I will not go into the reasons at this point, as I cannot disclose what is in the material when it is received under section 32C(6).
9 As the material is already in the court pursuant to my order made under section 32C(6), I do not require the accused to issue a subpoena, and as foreshadowed in court, I now move to consider whether leave should be granted to produce the file.
10 The test is found in section 32D(1) of the Act and is both restrictive and conjunctive. Despite the apparent restriction of subsection 1(c) in its terms to the stage of ‘admitting’ the evidence, I take the view that the balancing exercise as to the competing public interests should be undertaken at each stage[2]. In deciding whether to grant leave, the Court must also have regard to the guiding principles (section 32AB of the Act) and although it seems section 32D(2) is to be taken into account only for subsection 1(c), I think regard should also be had to those matters for the reasons I gave above. I have considered all of these matters in light of the submissions made in court.
[2] Application to compel production; application to produce; application to adduce.
11 Pursuant to section 32D(3), I propose to release a redacted copy of material from the file by providing pages to counsel.
12 The fact in issue is whether the alleged sexual activity occurred. The credibility and reliability of the complainants are not facts in issue but are inextricably linked with the fact in issue. The material to be produced pursuant to the grant of leave does not relate to the development of allegations, which was the basis of the application, but does have substantial probative value in another way.
13 The evidence from the depositions shows that C complained to her mother about the sexual acts around 12 and 13 June 2015; as a result of that complaint, S was questioned by her mother and also made a complaint. As part of her questioning of S, the mother asked why S had not told Ms Opperman about this. S’s response was that she forgot. When the children returned to their father at the end of the access period with their mother, as soon as he learned of the allegations, he took the children to the police station. The evidence in chief of the two complainants was recorded on 15 June 2015.
14 The material from Ms Opperman’s file which is to be released includes a page of information as to attendances, which has been redacted to exclude irrelevant material, and material which does not meet the test. There is a note that the father of S and C telephoned Ms Opperman on 16 June to tell her of the allegations. Then there is a list of consultations with S and C, the first noted as a consultation with S on 9 June 2015. The handwriting is difficult to read, but there is clear reference in a consultation noted as 9 June 2015 to an allegation of sexual assault by S against the accused.
15 The clarification sought from Ms Opperman through my Associate was to confirm the consultation with S was 9 June, and not 19 June[3]. If the allegation was made by S on 9 June, it pre-dates the complaint received by the mother, the father, and the police. The query was raised because of the order in which the contacts were listed and in which the notes were filed, and because if Ms Opperman seems to have done nothing with the information she received from S as to sexual assault, if received on 9 June[4]. Ms Opperman confirmed that the date she saw S around that time was 9 June.
[3] See attached email trail. The first conversation between the Associate and Ms Opperman was to confirm her contact details and advise that an order had been made and that the order and other documents would be sent to Ms Opperman. This is a standard process in the Sexual Offences List of the County Court.
[4] If a registered psychologist, Ms Opperman is a ‘mandatory reporter’ as defined in the Children, Youth and Families Act 2005 ss 182, 184.
16 The basis of the application was any reference in the file as to the development of allegations, given that similar allegations were made by S and C in the past[5]. There is no material from previous consultations before the VARE process was undertaken which reflects any ‘development’ of an allegation by S, and the note of 9 June does not itself reflect any ‘development’.
[5] On 15 March, in answer to a subpoena to Victoria Police, material as to other allegations was released to the parties, redacted to remove identification of notifiers.
17 It is therefore perhaps a borderline decision that the protected material will have substantial probative value to the fact in issue by way of a potential attack on the credibility of S, a child, through the notes taken of a counsellor. However, as production will provide material which is not otherwise available, I have determined that the test is met on all limbs of s.32D, and some material is to be provided to the parties.
18 Pursuant to section 32D(3), I propose to release material from the file by providing pages to counsel, which have been redacted to exclude irrelevant material and material which does not meet the test. The notes of the consultation dated 9 June 2015 are provided in full.
19 The proposed evidence, if sought to be led to impeach the credit of S, may not be led unless as an exception to the credibility rule[6]. A particular exception is that the credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence ‘could substantially affect the assessment of the credibility of the witness’. It would seem from the terms of s103(2) that this exception probably should be canvassed with the trial judge by cross examining counsel before the questioning commences. As the attack on credibility based on the protected evidence is through another witness, that provides another reason that the matter should be canvassed with the trial judge before commencement of the Special Hearing recording S’s evidence, and consideration given to whether the psychologist might be required on a voir dire.
[6] Sections 102, 103 Evidence Act 2008
20 Leave to adduce will also need to be granted by the trial judge if sought by the accused, and it is my view that the test needs to be considered afresh by the trial judge, with the benefit of submissions from counsel who will at that stage have the material[7].
[7] Cf. SLS (2014) 42 VR 64 at [233].
21 I am of the view that there is nothing in the file that otherwise bears relevantly on the credibility or reliability of S.
22 The application is granted to the extent that I have described. The material is not to be shown to the accused but may be referred to for the purpose of getting instructions, and is not to be made available to any other party without the leave of the court.
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