The State of Western Australia v Brown
[2013] WASC 12
•17 JANUARY 2013
THE STATE OF WESTERN AUSTRALIA -v- BROWN [2013] WASC 12
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 12 | |
| Case No: | INS:145/2012 | 14 JANUARY 2013 | |
| Coram: | McKECHNIE J | 17/01/13 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Inspection allowed | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA GARRY EDMUND BROWN |
Catchwords: | Criminal practice and procedure Summons to produce Application by DPP Whether fishing Whether material relevant No new principles |
Legislation: | Nil |
Case References: | Connell v The Queen [No 6] (1994) 12 WAR 133 [203] The State of Western Australia v Christie [2005] WASC 214; (2005) 30 WAR 514 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Prosecution
AND
GARRY EDMUND BROWN
Accused
Catchwords:
Criminal practice and procedure - Summons to produce - Application by DPP - Whether fishing - Whether material relevant - No new principles
Legislation:
Nil
Result:
Inspection allowed
Category: B
Representation:
Counsel:
Prosecution : Ms A L Forrester
Accused : Ms H E Prince
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
Accused : Legal Aid (WA)
Case(s) referred to in judgment(s):
Connell v The Queen [No 6] (1994) 12 WAR 133 [203]
The State of Western Australia v Christie [2005] WASC 214; (2005) 30 WAR 514
- McKECHNIE J:
How this matter gets to court
1 The accused is charged with two counts of murder alleged to have occurred on 25 August 2011. His counsel has received a psychiatric opinion relating to a possible defence of insanity. The State wishes to obtain its own opinion and a witness summons was directed to the Commissioner of Corrective Services to produce:
1. All documents in your possession which record or relate to medical, psychological or psychiatric treatment of Garry Edmund Brown (DOB 31 July 1964) whilst Garry Edmund Brown was in the custody of, or under the supervision of, the Department of Community Corrections (whether directly or indirectly), including all records of medication prescribed and/or taken and any blood or urinalysis results.
2. All pre-sentence reports prepared for any Court appearance by the said Garry Edmund Brown.
3. All psychological or psychiatric reports relating to the said Garry Edmund Brown in your possession, whether prepared for Court purposes or treatment purposes.
2 The State wishes to put this material before a psychiatrist.
3 The Commissioner has responded to the summons by delivering the material to the court. The Commissioner makes no submission either way.
Opposition to inspection
4 Inspection is opposed by counsel for the accused who argues that it is confidential information, not relevant to matters which have to be determined, that there is no legitimate forensic purpose in the opinion evidence or in the pre-sentence reports. She also argues that the matters go back into the 1990s and are therefore irrelevant.
The principles governing the application
5 There is a difference between material which might be relevant and admissible in a trial and material which might be inspected pursuant to a witness summons when brought into court.
6 In The State of Western Australia v Christie [2005] WASC 214; (2005) 30 WAR 514, I set out the principles at common law referring to, among other cases, to Connell v The Queen [No 6] (1994) 12 WAR 133 [203].
7 Although Christie was an application by an accused for documents held by the State, the principles are of general application:
In Connell v The Queen (No 6) (1994) 12 WAR 133 the Court set out the applicable law at page 203:
It is not in dispute that the applicable law is to be found in National Employers' Mutual General Association Ltd v Waind [1978] 1 NSWLR 372 at 381, 383-385 and in Alister v The Queen (1984) 154 CLR 404 at 412-415, 431,456-457. In National Employers', Moffit P [sic] said (at 385) in the exercise of the power to permit inspection of a document, the judge must determine whether it appears relevant in the sense that it relates to the subject matter of the proceedings. He continued, that once the judge is of the opinion that the document contains information of apparent relevance to the issues, inspection will normally be allowed 'notwithstanding that the document is not admissible as it stands, and notwithstanding that the party seeking inspection has not given any undertaking to tender it, or use it in cross-examination'. Alister's case makes clear that the test of relevance must include consideration of the possibility that the document may support the defence of an accused person in criminal proceedings (at 414) per Gibbs J. It 'may be enough that it appears to be "on the cards" that the documents will materially assist the defence'. It is not right to refuse disclosure simply because there were no grounds for thinking that the document could assist the accused (at 414-415).
As I read the authorities to which I have made reference, and the Criminal Procedure Act, there is to be discerned a general intention that in order to ensure a fair trial, the State has an obligation to ensure that the fruits of an investigation are in general terms made available to the defence. There seems to remain, however, two qualifications to that broad-ranging and general duty. The first qualification is that, at least in matters which are not specifically enumerated within the Criminal Procedure Act as evidentiary material or confessional material, there is an onus on the defence to show some legitimate forensic purpose in the disclosure of the material; that is, a reasonable possibility that production will materially assist the defence. The second qualification is that even if there is shown to be a legitimate forensic purpose, the material may nevertheless be prevented from disclosure on the grounds of a public interest immunity. Such an immunity, of course, requires a balance to be made as to the differing community interests, on the one hand, in ensuring a fair trial and, on the other hand, in preventing disclosure of certain police techniques and methods, of a covert nature, which, if they became generally known, would impact upon the ability of the Police Service to control crime [21] - [22].
The report of Dr Bryan Tanney
8 Dr Tanney is the psychiatrist retained by the accused. Dr Tanney's sources of information are set out as the statement of material facts, prosecution witness statements, his considerable records of care from the Substance Abuse Authority of West Australia and some of his records of care while in custody in August both before and after the offences, the VROIs and transcripts of three interviews with Mr Brown held in August 2011. Dr Tanney took a family history and noted under 'Forensic History' the accused's account that:
The offendings for physical violence are notable and Mr Brown reported that virtually all of these were fuelled by alcohol or drugs. He attributed virtually all of the offending to his concurrent substance abuse dependency.
9 Dr Tanney detailed substance abuse from the age of 18.
10 Under the heading 'Mental Health' Dr Tanney detailed comments during a detoxification episode and:
During is 1999 through 2003 incarceration, he met fortnightly with a prison counselling service psychologist to deal with child sexual abuse and other childhood trauma issues. In 2003, he had six outpatient sessions with a psychologist directed towards post-traumatic stress disorder [PTSD] and trauma therapy. Her assessment at that time suggested 'complex PTSD'.
11 This is linked to Dr Tanney's ultimate opinion of pre-existing and chronic diagnoses of mental disorder which included poly-substance abuse, post traumatic stress disorder and dysthymia, all of which are linked.
Material in response to the witness summons
12 The material produced by the Commissioner includes a psychiatric report from 1999, a psychological assessment from the same period, a treatment completion report for violent offending treatment programme of 2002, a pre-sentence and other reports. The material also contains copies of the Health Service's files in relation to the accused. These include not only diagnoses and opinions but also, interweaved, comments from the accused about his mental state and other issues.
Conclusion
13 The issue is the accused's mental state at the time of the alleged crimes. Dr Tanney's opinion, in part, relates to post traumatic stress disorder which is of very longstanding. Any material which relates either to the mental state of the accused at a particular time, or his statements to others about his mental state, are all matters of possible relevance. It is on the cards that the material may promote a line of enquiry by a psychiatrist or add to the psychiatrist's understanding of the person about whom an opinion is being sought. Having read the material, I am of opinion that there should be no bar to the prosecution inspecting it. Some of the material, of course, is confidential and relates naturally to the accused's health, in particular his mental health. The medical notes particularly fall into that category. Documents which have been prepared for court or used by courts are documents that have already been disclosed albeit for limited purposes.
14 When the accused's mental state is in issue, it is in the interests of justice that both parties should have the fullest opportunity to examine that mental state, if necessary by what has occurred in the past, in order to understand and reach a conclusion as to what may have occurred on the evening of the alleged offences. The fact that the material contains opinions does not render it irrelevant. Opinions of psychiatrists and psychologists may or may not be of assistance to a psychiatrist in formulating an opinion as to mental state at the time of the alleged offences.
15 The fact that they may be of assistance is sufficient to satisfy the low threshold of relevance to enable inspection.
Result
16 I order that each party may inspect the documents brought into court on the return of the witness summons directed to the Department of Corrective Services. Each party may take a copy of such documents that they wish to use solely for purposes of this litigation (which includes making them available to qualified medical practitioners and psychologists).
17 The copies are to be kept confidential except for that purpose and to be returned to the court at the conclusion of the trial or any subsequent appeal.
18 I further order that this judgment be made available solely to the parties and not uploaded onto any electronic database until the verdict of the court is known or until further order of a judge. The reason for the temporary non-dissemination order is to preserve the integrity of the trial.
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