Wilson v Magistrates Court of South Australia

[2004] SASC 297

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application for Judicial Review)

WILSON v MAGISTRATES COURT OF SOUTH AUSTRALIA AND ANOR

Judgment of The Honourable Justice Perry

24 September 2004

ADMINISTRATIVE LAW - JUDICIAL REVIEW AT COMMON LAW

COMMITTAL PROCEEDINGS - EVIDENCE RULING

The plaintiff is charged on an information with a number of counts of unlawful sexual intercourse and indecent assault - during the course of committal proceedings in the Magistrates Court, he subpoenaed the records of a psychiatrist who had, some years after the alleged offences, treated one of the alleged victims - the magistrate ruled that the psychiatrist's records were protected communications within the meaning of Division 9 of the Evidence Act 1929 and accordingly were the subject of public interest immunity - the plaintiff sought judicial review of the magistrate's ruling - consideration of the relevant provisions of the Evidence Act and whether the magistrate's ruling reflected jurisdictional error amenable to correction in proceedings by way of judicial review - held that the magistrate correctly ruled that the records were protected communications and he had not committed any jurisdictional error in the process of doing so - consideration of the principles governing the application of Division 9 of the Evidence Act to committal proceedings - application dismissed.

WILSON v MAGISTRATES COURT OF SOUTH AUSTRALIA AND ANOR
[2004] SASC 297

Civil

1. PERRY J. This is an application for an order by way of judicial review in the nature of certiorari, or alternatively mandamus, relating to an order made by a magistrate sitting in the Magistrates Court at Holden Hill, on 15 April 2004.

2. The plaintiff, who is a medical practitioner, is charged on an information filed in the Magistrates Court, with three counts of unlawful sexual intercourse and two counts of indecent assault.

3. There are two alleged victims.

4. With respect to one of the alleged victims, whom I will call VB, it is alleged that the plaintiff had unlawful sexual intercourse with her on 1 February 1986 when she was aged 13 years, and that he indecently assaulted her on 1 January 1989.

5. As for the other three counts, these concern an alleged victim whom I will call LH. It is alleged that the plaintiff had sexual intercourse with her when she was aged 13 and 15 respectively, the dates of those alleged offences being 25 December 1988 and 25 December 1990. The third count concerning LH alleges that the plaintiff indecently assaulted her on 26 May 1992.

6. Committal proceedings with respect to the charges are currently in train. They are not yet concluded. No decision has been made that the plaintiff be committed for trial. The hearing of the committal proceedings is due to resume on 14 October 2004.

7. In accordance with s 104 of the Summary Procedure Act 1921, a number of written statements have been filed in court and delivered to the plaintiff, including statements of the two alleged victims.

8. By letter dated 17 June 2003, Scammell & Co, the solicitors for the plaintiff, wrote to the Director of Public Prosecutions (“the DPP”) seeking further statements and other information. Part of the further information which the plaintiff’s solicitors requested related to the complainant VB.

9. VB was treated by a psychiatrist, Dr Meera Goel, between March 2001 and February 2004. She had been referred to Dr Goel by the plaintiff, in the course of his medical practice.

10. The plaintiff’s solicitors sought to inspect Dr Goel’s files concerning VB. In their letter, the request is couched in the following terms:

    “Dr Meera Goel

    We seek to inspect the medical files kept by Dr Meera Goel and if necessary seek a copy of same.

    The communications between the complainant [VB] and Dr Goel are expressly raised by the complainant in her statement 4.8.02.

    The material contained within the medical file are relevant for the following reasons:

    sThe complainant was referred to Dr Goel for treatment by the accused.

    sThe complainant has been diagnosed as suffering a bi-polar disorder and the complainant’s psychiatric condition is relevant to the matter.

    sThe complainant in her statement 8.3.03 has indicated that she cannot recall the specifics of what she stated to Dr Meera.

    sThat presumably the reference to Dr Goel in her statements will be led by her at trial as a complaint.”

11. In the statement of 4 August 2002, VB states:

    “I have been seeing a psychiatrist for the last two years since 2000. I am seeing Dr Meera Goel … I was actually referred to her by Greg [the plaintiff].”

12. Later in the statement she said:

    “He [the plaintiff] referred me to Dr Goel … I had been seeing Dr Goel for over a year before I first told anyone about what Greg did to me. The first person I told was my husband Ed .. I first told Ed while we were talking about how I was going … We were discussing my session with Dr Goel and somehow we got on to talking about Greg,”

13. In her statement of 8 March 2003, VB said:

    “I spoke to my psychiatrist about realising that I had been sexually abused as a child. I wanted to run through with her what had happened to me. I wanted her to confirm what Edwards had said about it being wrong. I was still feeling confused about why it had happened. I always assumed that it was my fault because I didn’t say ‘No’ and didn’t tell anyone. I cannot recall any other specifics about what was said.”

14. On 13 November 2003 at a hearing in the Magistrates Court, counsel for the plaintiff sought and obtained leave of the presiding magistrate to issue a subpoena against a number of proposed witnesses, including Dr Goel. The subpoena against her sought the production by her of “… all medical records, notes, reports, documents and memoranda concerning [VB]”.

15. Before the return date of the summons, Dr Goel delivered her file to the registry. The magistrate then gave leave to both parties to inspect the file.

16. During the course of the ensuing inspection, which was conducted jointly by Ms Pienaar of the office of the DPP, and Mr Crocker of counsel for the plaintiff, Ms Pienaar indicated that she considered that the medical file should not be inspected in view of the terms of s 67F of the Evidence Act 1929 (“the Act”). She raised the matter with the magistrate. He took Dr Goel’s file into his possession, and indicated that he would hear argument later on the question of access to it.

17. Apparently in an effort to demonstrate that the notes on file constituted evidence of a “protected communication” within the meaning of Division 9 of the Act and were accordingly privileged from production, the DPP filed a statement by Dr Goel.

18. In the statement, she confirmed that she was a qualified psychiatrist practising at North Adelaide. She said that she had had consultations with VB on 87 occasions between 29 March 2001 and 4 February 2004. The dates of each of the occasions are set out in her statement.

19. In the statement, Dr Goel goes on to say:

    “The communications were made in a therapeutic context. Notes were made during the consultations. A copy of the case notes has been provided to the court in response to a subpoena received.”

20. On 11 March 2004, the magistrate heard argument on the question whether or not the relevant parts of Dr Goel’s file constituted evidence of protected communications, and were, on that account, privileged from disclosure.

21. On 15 April 2004, the magistrate delivered short reasons in which he held the documents to be evidence of protected communications, and accordingly that they were “inadmissible” and access would not be given to them.

22. By an inter partes summons issued out of this Court on 23 June 2004, in which the Magistrates Court and the DPP are named as defendants, the plaintiff claims the following orders:

    “1.An order by way of judicial review in the nature of certiorari removing the order dated 15 April 2004 of Mr Clark SM for the purpose of it being quashed.

    2.An order by way of judicial review in the nature of mandamus remitting the matter to Mr Clark SM and ordering him, on the basis that Dr Goel’s file is not a protected communication, to dismiss the application by the DPP that Dr Goel’s file not be inspected by the legal advisers to the Plaintiff.

    3.In the alternative, an order by way of judicial review in the nature of mandamus remitting the matter to Mr Clark SM and ordering him to direct that Dr Goel be presented by the DPP for cross examination upon her declaration and further that Mr Clark SM then determine whether any, and if so what part, of Dr Goel’s file is a protected communication.

    4.An order staying the hearing of the proceedings in the Holden Hill Magistrates Court against the Plaintiff until further order.”

23. There was no appearance at the hearing before me on behalf of the defendant the Magistrates Court. I was informed by counsel for the DPP that the Magistrates Court would abide the event of the hearing.

    Statutory Provisions

24. The relevant parts of the Act are as follows:

    “Division 9 - Protected communications

    Interpretation

    67D  In this Division-

    “committal proceedings” means proceedings for the preliminary examination of a charge of an indictable offence;

    “counsellor or therapist” means a person whose profession or work consists of, or includes, providing psychiatric or psychological therapy to victims of trauma (and includes a person who works voluntarily in that field);

    “protected communication” means a communication that is protected by public interest immunity under section 67E;

    “psychiatric or psychological therapy” includes counselling;

    “therapeutic context” - a communication relating to a victim or alleged victim of a sexual offence is made in a therapeutic context if-

    (a)     the communication is made-

    (i)to enable a counsellor or therapist to assess the nature and severity of the trauma suffered by the victim or alleged victim, or consequent psychiatric, psychological or emotional harm; or

    (ii)for the purposes, or in the course, of psychiatric or psychological therapy provided to the victim or alleged victim; and

    (b)    the communication is made in circumstances that give rise to a duty of confidentiality or a reasonable expectation of confidentiality.

    Certain communications to be protected by public interest immunity

    67E(1)    A communication relating to a victim or alleged victim of a sexual offence is, if made in a therapeutic context, protected from disclosure in legal proceedings by public interest immunity.

    (2)However, the following communications are not subject to public interest immunity:

    (a)a communication made for the purposes of, or in the course of, a physical examination of the victim or alleged victim of a sexual offence by a registered medical practitioner or registered nurse; or

    (b)a communication made for the purposes of legal proceedings arising from the commission of the alleged offence or for commencing such legal proceedings; or

    (c)a communication as to which reasonable grounds exist to suspect that the communication evidences a criminal fraud, an attempt to pervert the administration of justice, perjury or another offence.

    (3)A public interest immunity arising under this section cannot be waived by-

    (a)the counsellor or therapist; or

    (b)a party to the protected communication; or

    (c)the victim or alleged victim of the sexual offence or the guardian of the victim or alleged victim.

    Evidence of protected communications

    67F(1)    Evidence of a protected communication-

    (a)is entirely inadmissible in committal proceedings; and

    (b)cannot be admitted in other legal proceedings unless-

    (i)the court gives leave to a party to the proceedings to adduce the evidence; and

    (ii)the admission of the evidence is consistent with any limitations or restrictions fixed by the court; and

    (c)is not liable to discovery or any other form of pre-trial disclosure.

    (2)On an application for leave to adduce evidence of a protected communication, the judge may make a preliminary examination of the relevant evidence if satisfied that-

    (a)the applicant has a legitimate forensic purpose for seeking leave to adduce the evidence; and

    (b)there is an arguable case that the evidence would materially assist the applicant in the presentation or furtherance of his or her case.

    (3)For the purposes of a preliminary examination of evidence, the court may order the counsellor or therapist to do one or more of the following:

    (a)to provide written answers to questions;

    (b)to produce written materials relating to the relevant protected communications;

    (c)to appear for oral examination.

    Exceptions-

    1.…..

    2.An order requiring a person to appear for oral examination is not to be made unless the court is satisfied that the examination cannot otherwise be effectively conducted.”

25. Subsection (5) provides that in deciding whether to grant leave to adduce evidence of a protected communication, the court is to weigh the public interest in preserving the confidentiality of protected communications against the public interest in preventing a miscarriage of justice that might arise from suppression of relevant evidence.

26. In weighing those considerations, the Act provides that the court is to have regard to a number of matters, including the need to encourage victims of sexual offences to seek psychiatric or psychological therapy, the probative value of the evidence, whether its exclusion may lead to a miscarriage of justice, and other matters (s 67(6)).

27. Subsection (7) provides:

    “(7)The court is not to grant leave to adduce evidence of a protected communication unless satisfied that the public interest in preserving the confidentiality of protected communications is outweighed, in the circumstances of the case, by the public interest in preventing a miscarriage of justice that might arise from suppression of relevant evidence.”

28. It is clear from the provisions which I have quoted, that the Act draws a distinction between admissibility of evidence of a protected communication in committal proceedings on the one hand, and in other legal proceedings on the other.

29. In the context of this case, the distinction is relevant to the course of the committal proceedings, and if the plaintiff is committed for trial, the trial of the charges.

30. If the communications between VB and Dr Goel are properly characterised as communications made in a “therapeutic context” within the meaning of those words in s 67D, evidence of the communications will be “entirely inadmissible” in the committal proceedings. However, evidence of the communications may be admitted at the trial, by leave.

31. The procedure pursuant to which an application for leave to adduce the evidence is to be dealt with is set out in s 67F(2). In considering an application for leave, the court must weigh the public interest in preserving the confidentiality of the communications against the public interest in preventing a miscarriage of justice which might arise if the evidence was to be suppressed (subsection (5)). The criteria to be brought into account in that weighing exercise are the matters referred to in subsection (6).

32. Clearly, the protection from disclosure by reason of the application of public interest immunity to documents caught by these provisions, extends to prevent perusal of, or access to, evidence of communications made in a therapeutic context, in situations where, as is the case here, production of a counsellor’s or therapist’s notes has been secured by means of a subpoena to produce documents at the hearing of the committal proceedings.

33. A critical question for the purposes of the proceedings in this Court is whether the notes in Dr Goel’s file of her attendances upon VB should properly be characterised as evidence of communications made in a therapeutic context within the meaning of s 67D.

    The Magistrate’s Ruling

34. After explaining the circumstances in which the question arose, the magistrate quoted the relevant parts of s 67D, E and F. He then proceeded as follows:

    “8      Mr Crocker applied for leave to call Dr Goel to ascertain the exact nature of communications prior to the defendant being interviewed by the police and charges laid.

    9In my consideration of this application I have again referred to the unambiguous wording of Section 67F which I repeat is as follows, namely:

    ‘(1)   Evidence of a protected communication-

    (a)is entirely inadmissible in committal proceedings;’.

    10Parliament, I find, has made it crystal clear with the use of the word ‘entirely’ that I have no, I repeat, no discretion in the matter and I am bound by the legislation to refuse to admit any or all of the material provided by Dr Goel and to make it available for counsel’s inspection and from calling Dr Goel in committal proceedings.

    11I have satisfied myself that it is entirely inappropriate to permit counsel access to Dr Goel’s notes and/or for leave to be granted to call Dr Goel to give evidence.

    12I am satisfied I have no discretion in the matter as Parliament has made its intention known that a protected communication is entirely inadmissible in committal proceedings and that is the end of the matter.

    13Mr Crocker’s application is refused.”

    The Arguments in this Court

35. Mr Crocker, who appeared for the plaintiff, argued that the magistrate had misconstrued the nature of the application which was before him and had addressed the wrong question.

36. He contended that from his reasons, it appears that the magistrate confined himself to the question whether Mr Crocker should be given leave to call Dr Goel to give evidence, that is, to be cross-examined on her statement. He argued that the magistrate should first have addressed the question whether the communications with Dr Goel were “protected communications”. Mr Crocker submitted that the only evidence bearing on that question proffered by the DPP, was Dr Goel’s statement, which was insufficient to provide a proper basis for a finding that the communications between Dr Goel and VB were made in a therapeutic context.

37. The bald assertion by Dr Goel in her statement that the “communications were made in a therapeutic context” was the expression of an opinion which, Mr Crocker contended, was inadmissible. It was for the magistrate to determine that question.

38. It was only in the context of his alternative submission to the magistrate, that Mr Crocker had argued that if he was to have regard at all to Dr Goel’s statement, he should direct her to be called to give evidence on it.

39. By failing properly to address the question of the adequacy of the evidence as to whether the communications in question were made in a therapeutic context, Mr Crocker contended that the magistrate had fallen into jurisdictional error, which might properly be remedied by an order by way of judicial review.

40. Ms Barnett, who appeared on the hearing before me on behalf of the DPP, did not challenge what Mr Crocker submitted was the manner in which he had put his client’s case before the magistrate. But she submitted that there was simply no doubt that the magistrate had considered the material before him and had satisfied himself that the notes were evidence of protected communications.

41. I think it right to recognise that, with respect to the magistrate, it would have been better if he had made it clear that there were two questions to be addressed. They were, whether or not, on the material that was before him, he was satisfied that any communications recorded in Dr Goel’s notes were the subject of public interest immunity, and the separate question whether, in all the circumstances, she should be presented for cross-examination on her statement.

1. His reasons suggest that he conflated the two questions.

2. It is convenient at this stage to deal with one of the arguments as to a question of construction of the Act, put forward by Mr Crocker on the hearing in this Court.

3. He contended that in order for a communication to have been made in a therapeutic context within the meaning of the definition of that expression in s 67D, it would be necessary for the counsellor or therapist to be aware of the fact that he or she was dealing with an alleged victim of a sexual offence.

4. If that argument was to be accepted, it has implications with respect to some of the earlier attendances by Dr Goel on VB.

5. In VB’s statement of 4 August 2002, she said:

   “I have been seeing Dr Goel for over a year before I first told anyone about what Greg did to me.”

6. On Mr Crocker’s argument, if that statement is true, Dr Goel could not have been aware during the course of her attendances upon VB for the period encompassed by the first year after VB first consulted her in March 2001, that she was dealing with somebody who was an alleged victim of a sexual assault. Mr Crocker argued that in those circumstances, communications between VB and Dr Goel during that period would not be within the protection afforded by Division 9 of the Act.

7. I reject that argument.

8. Victims of sexual offences, particularly young children, do not always tell others about the offence. One can well imagine that a small child, who makes no disclosure of what has happened, may nonetheless exhibit symptoms which may prompt parents or others to refer the child for psychiatric or psychological therapy. In such circumstances, to suggest that the communications between the victim and the counsellor would not be protected, unless and until the victim had complained of the sexual offence, and that only communications after that date would be within the protection given by the Act, would be a strained interpretation of the provisions.

9. I would accept that within the definition of “therapeutic context” in s 67D, the communications referred to in subparagraph (a)(i) are unlikely to have been made other than to a counsellor or therapist who is aware of the alleged sexual offence. This is because that subsection deals with communications “to enable a counsellor or therapist to assess the nature and severity of the trauma suffered by the victim or alleged victim, or consequence psychiatric, psychological or emotional harm”. It is unlikely that one could assess the nature and severity of the trauma referred to in that sub-clause, without an awareness that the trauma was alleged to have been consequent upon a sexual offence.

10. On the other hand, the terms of the next sub-clause, sub-clause (a)(ii) in the definition of “therapeutic context” in s 67D, do not give rise to the same considerations. The communications to which that sub-clause relates, are described as communications made “for the purposes, or in the course, of psychiatric or psychological therapy provided to the victim or alleged victim”. An awareness that the person seeking treatment or therapy is or is alleged to be the victim of a sexual offence, does not seem to me to be an essential requirement for that sub-clause to be application.[1]

    [1] I do not pause to deal with the question, which does not arise in this case, whether sub-clause (a)(ii) would extend to communications pre-dating the alleged offence.

11. It is sub-clause (a)(ii) of the definition of therapeutic context which is of application in this case.

12. There is a further limb in the definition of “therapeutic context”, namely, the requirement in sub-clause (b) that “the communication is made in circumstances that give rise to a duty of confidentiality or a reasonable expectation of confidentiality”.

13. That requirement would be satisfied if the evidence established that the communication was made in the course of the administration of psychiatric or psychological therapy, where there is in existence the normal relationship of patient and medical practitioner.

14. When any patient approaches a medical practitioner for treatment, there is at the very least a reasonable expectation of confidentiality, unless that expectation is displaced by reason of some special arrangement or circumstance, such as, for example, if the examination is for the purposes of an opinion to be furnished to a third party.

15. I turn now to address the question as to the circumstances in which it would be proper to direct a counsellor or therapist to appear at committal proceedings, to be examined on the question whether relevant communications to which they were party, were made in a therapeutic context.

16. In my view, it would rarely be proper to take such a course, if it should be permitted at all.

17. There are several considerations which lead me to that view.

18. In the first place, it will have been seen from exception 2 to s 67F(3)(c), that in the context of legal proceedings other than committal proceedings, an order for oral examination of a counsellor or therapist for the purposes of a preliminary examination of evidence is not to be made “unless the court is satisfied that the examination cannot otherwise be effectively conducted”.

19. It would hardly sit comfortably with the stringent nature of that requirement, which must be observed by a trial court, for a court conducting committal proceedings to adopt a less stringent response to a request that a counsellor or therapist should be called to give oral evidence in such proceedings, even if the evidence is confined to questions relating to the issue whether any communications should be characterised as communications made “in a therapeutic context”.

20. Furthermore, if such a witness was to be called to give oral evidence at committal proceedings, albeit evidence limited to that question, it would be very difficult indeed for the course of questioning to be confined to matters relevant to the characterisation of the communications for the purposes of s 67E, without disclosing the content of the communications.

21. When it is clear that one of the express purposes to which Division 9 of the Act is directed, is the need to encourage victims of sexual offences to seek psychiatric or psychological therapy and to maintain confidentiality between the counsellor or therapist and the victim (s 67F(6)(a)), the calling of a counsellor or therapist at committal proceedings to give oral evidence, would create a serious risk of a breach of that confidentiality.

22. The procedure adopted in this case, for the DPP to obtain a statement from the psychiatrist, is a much better means of controlling the situation in a manner which is consistent with the evident purpose of the provisions to be found in Division 9.

23. However, I think that there is validity in the criticism that the statement obtained in this case from Dr Goel, could have been expressed in terms which would have been more helpful to the court.

24. The bald statement by Dr Goel “the communications were made in a therapeutic context” is an expression of a conclusion which might raise the question whether Dr Goel has addressed the appropriate criteria in expressing that view, and whether Dr Goel had been informed of the statutory definition of “therapeutic context”, and if so, whether she had been informed correctly of it.

25. It would be better for a statement given in such circumstances simply to describe the nature of the consultations eg that they were confined to treating the patient, and not for some other purpose.

26. In this case, however, there could hardly be any room for doubt as to what Dr Goel was describing in her statement.

27. In the first place, one could assume with reasonable confidence that a medical practitioner such as Dr Goel, would be aware of the meaning of the word “therapy”. The ordinary meaning of that word is “the medical treatment of disease; curative medical treatment”.[2]

    [2]   Shorter Oxford English Dictionary.

28. The relevant part of the definition of “therapeutic context” in s 67D of the Act is:

    “For the purposes, or in the course, of psychiatric or psychological therapy provided to the victim or alleged victim.”

29. When Dr Goel stated, “The communications were made in a therapeutic context”, she must surely be taken to mean that the communications were made in the course of her treatment of VB.

30. Furthermore, the plaintiff, in his capacity as a general practitioner, was responsible for referring VB to Dr Goel for treatment. In her statement of 4 August 2002, VB expressly stated that she had been seeing Dr Goel for the last two years, having been referred to her by the plaintiff. The plaintiff’s solicitor’s letter to the DPP of 17 June 2003 confirms that this was so. The letter expressly states that the plaintiff referred VB to Dr Goel for treatment.

31. That there are 87 attendances described by Dr Goel as “consultations”, is strongly suggestive of a course of treatment.

32. In my view, there was ample evidence before the magistrate which should properly have led him to the view that the evidence in question, was evidence of communications which answered the definition of communications made in a therapeutic context, within the meaning of s 67D.

33. The only remaining question is whether in his treatment of that evidence and of Mr Crocker’s application, the magistrate committed an error amounting to jurisdictional error, which should be corrected by this Court.

34. In my opinion, although his reasons were brief, they indicate clearly enough that the magistrate was of the view that the notes constituted evidence of a protected communication by reason of the fact that the communications to which they related were made in a therapeutic context. He refers in his reasons to the “further statement from Dr Goel that the notes were taken in a therapeutic context”. Although he adds, “Dr Goel’s statement did not provide any further reasons”, there is no reason to suppose that he did other than accept Dr Goel’s statement.

35. He goes on to refer to the definition of “therapeutic context” in s 67D. He concluded:

    “… I am bound by the legislation to refuse to admit or all of the material provided by Dr Goel and to make it available for counsel’s inspection.”

36. He stated further:

    “I have satisfied myself that it is entirely inappropriate to permit counsel access to Dr Goel’s notes.”

37. When he went on to say:

    “.. and/or for leave to be granted to call Dr Goel to give evidence”,

    he appears to have been of the view that to allow her to give evidence would have been to admit evidence of a protected communication which would have been in breach of the section.

38. Although as I have said, if the court was in doubt about the matter, it might be possible in a rare case to allow the counsellor or therapist to be called, simply to give evidence as to the proper characterisation of the communications, but this is not such a case.

39. It seems to me that it was plain enough on the material before the magistrate that the notes in question attracted the immunity created by Division 9, and, as the magistrate observed, that was an end of the matter.

40. It follows that I am not satisfied that there is any error attaching to the ruling made by the magistrate, let alone jurisdictional error such as would justify intervention by this Court.

41. It is unnecessary in those circumstances for me to refer to the long line of authority to the effect that criminal proceedings should ordinarily be left to follow their ordinary course, and special reasons must exist before intervention by this Court in the exercise of its supervisory jurisdiction is justified.[3]

    [3]   See, for example, The Queen v Harry; ex parte Eastway (1985) 39 SASR 203, Clayton v Ralphs and Manor (1987) 45 SASR 347, Dimitropoulos v District Court of South Australia (1998) 199 LSJS 7 and Dunn v District Court of South Australia (unreported) Perry J, 23 August 1996, judgment No S5787.

42. The remarks of King CJ in Goldsmith v Newman[4] are apposite:

    “… the grant of relief by way of judicial review is discretionary. The considerations operating against the grant of such relief in respect of committal proceedings referred to in R v Grieve; Ex parte Ellis[5] remain valid. For the reasons given in his judgment, I agree with the dictum of Jacobs J in Clayton v Ralphs (supra) at 365 ‘that in principle the administration of the criminal law should be left to the criminal courts’.

    Committal proceedings are a preliminary step in the process of criminal justice. Generally speaking, deficiencies in such proceedings can be remedied by pre-trial prosecution discovery of facts or documents or by appropriate action at the trial stage such as the permission of examination of witnesses in the absence of the jury. …The intervention of this Court in its supervisory jurisdiction should be necessary, even where a legal basis for it exists, only in the rarest of circumstances.”

    [4] (1992) 59 SASR 404 at 412.

    [5] (1978) 19 SASR 437.

43. If the plaintiff is committed for trial, there will be every opportunity at that stage for the plaintiff to apply for leave to adduce evidence of the communications in question pursuant to s 67F(1)(b)(i) of the Act.

44. The plaintiff’s claim in these proceedings, is dismissed.