R v M CA370/03

[2004] NZCA 379

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA370/03

THE QUEEN

v

[W L M]

Hearing:         25 February 2004 Coram:  Chambers J

Robertson J John Hansen J

Appearances: H S Edward for Appellant

E M Thomas for Crown Judgment:      8 March 2004

JUDGMENT OF THE COURT DELIVERED BY CHAMBERS J

A confession to a doctor

[1]                The accused is said to be a paedophile, suffering from bi-polar affective disorder.

R V [W L M] CA CA370/03 [8 March 2004]

[2]                On 15 March 2002, the accused, who was at the time subject to a compulsory treatment order under the Mental Health (Compulsory Assessment) Act 1992, was discharged from the psychiatric ward at Rotorua Hospital. He attended the hospital again as an outpatient on 20 May 2002. He saw Dr Francis Matete. During the consultation, he disclosed to Dr Matete that he had had sexual contact with a minor, a young boy, a relative of the person at whose house he was staying. He said that what he had done was an offence, that he was distressed by what he had done, and that he needed help.

[3]                Dr Matete decided that he needed to involve the police, as, based on the information disclosed, he thought there was a child at risk. He said to the accused that under the circumstances the accused needed protection and that the best way to get that protection was to have the police involved. He said that the accused indicated that it was all right to involve the police. The accused said,  according to Dr Matete, that he felt a sense of relief that the matter was out in the open. The doctor believed that the accused consented to his calling the police. Dr Matete expressed the opinion that at that time the accused was lucid in his communication and his mood was stable.

[4]                Dr Matete spoke to a police officer at Rotorua Police Station. He said that he would like to report a crime and that the crime involved a minor. He was advised that a police officer would be dispatched immediately. Dr Matete asked the accused to wait in the reception area until the officer arrived. The accused did so. About 20 minutes later Detective Matthew McLeod arrived.

[5]                After a brief discussion, the accused agreed to accompany Detective McLeod to the police station. The accused was duly cautioned and given his rights under the New Zealand Bill of Rights Act 1990. The accused then gave a video interview. In that, he made admissions that are capable of supporting the three charges he now faces in respect of complainant A. He also made admissions of a similar kind  relating to two other boys over the past 14 years. One of those boys is a complainant in the two further charges the accused now faces. Following the interview, the accused was arrested and charged. Since then, he has been committed for trial on

five charges, two of which are sexual violations, two are indecent assaults, and one is inducing an indecent act.

[6]                Mr Edward, as counsel for the accused, advised the Crown that he challenged the admissibility of the video recording on the ground that there had been a breach of s33 of the Evidence Amendment Act (No 2) 1980. As a consequence of that challenge, the Crown applied under s344A of the Crimes Act 1961 for an order that the accused’s statements to Detective McLeod on 20 May 2002 were admissible at trial.

[7]                Judge McGuire heard that application on 4 July and 18 August last year. He delivered a reserved decision on 4 September last year. He held that Detective McLeod’s proposed evidence was admissible.

[8]From that decision the accused has appealed.

Issues on the appeal

[9]                Mr Edward, in his submissions on appeal, concentrated on s33 of the 1980 Act. He submitted that there had been a breach of that section, with the consequence that the accused’s confession was inadmissible.

[10]            Alternatively, he argued that the confession should be excluded on the grounds of fairness.

[11]We shall deal with those issues in turn.

The section 33 argument

[12]            Judge McGuire’s decision focused principally on s33 of the 1980 Act. That no doubt reflected counsel’s argument to him. Similarly, in this Court, Mr Edward concentrated on s33 and Mr Thomas, for the Crown, responded accordingly.

[13]            We consider, with respect, that s33 has nothing to do with this case. In general terms, s33 prevents a registered medical practitioner from disclosing “in any criminal proceeding any protected communication made to him by a patient, being the defendant in the proceeding, except with the consent of the patient”. That section would be relevant if the Crown were proposing to call Dr Matete to give evidence at the trial. But Mr Edward informed us that he had an assurance from the Crown that  it did not propose to call Dr Matete. As Mr Thomas observed, there would be no point in calling Dr Matete. The confession made to him was rather limited. It would add nothing to the much fuller confession made by the accused in the videotape interview with Detective McLeod.

[14]            At the time Dr Matete spoke to the police, there was no “criminal proceeding”. The accused was not at that stage “the defendant in the proceeding”. The section has no relevance to medical practitioners at the pre-proceeding stage. Section 33 of the 1980 Act is concerned with evidence admissible at a criminal trial. It is not a section with which medical practitioners are expected to be familiar in the course of their medical practice, as s33 is not the means by which Parliament has attempted to define the scope of a medical practitioner’s duty of confidentiality.

[15]            The accused’s videotape statement is not inadmissible by virtue of s33 of the 1980 Act. Because it is unnecessary to do so, we express no view as to whether, in the circumstances of this case, Dr Matete would be able to give evidence at trial of the confession made to him.

Fairness

[16]            Mr Edward’s fall-back argument was that the accused’s statement to Detective McLeod should be ruled inadmissible on the grounds that it had been unfairly obtained. Mr Edward made no complaint about anything Detective McLeod did. But, he said, the statement was “tainted” because the police approached the accused only because of the inappropriate phone call from Dr Matete to the police. There was, Mr Edward said, “a nexus” between the doctor’s disclosure and the admissions made to the police.

[17]            First, we are not satisfied that there was “a nexus”. This overlooks the fact that the accused was given the appropriate caution and was accorded his rights under the Bill of Rights. The statement he made to Detective McLeod was voluntary. He made the statement in the knowledge that anything he said would be recorded and shown in evidence. The accused proceeded to make the statement with knowledge  of the rights he had at law.

[18]            Secondly, we are by no means satisfied that Dr Matete did anything wrong. We asked Mr Edward to identify the statutory provision or the common law principle which he contended Dr Matete had breached.

[19]            Mr Edward referred first to s33 of the 1980 Act. For reasons we have already given, that section was irrelevant to the scope of Dr Matete’s duty on 20 May 2002. Dr Matete did not breach s33.

[20]            Mr Edward referred next to the Health Information Privacy Code 1994. The Code was promulgated by the Privacy Commissioner, following the statutory procedure laid out in the Privacy Act 1993. Mr Edward submitted that Dr Matete  had breached the Code. He submitted that Lakeland Health, Dr Matete’s employer, was “a health agency” in terms of the 1994 Code and that what the accused  told    Dr Matete was “health information” as defined in the Code. We accept both propositions. Mr Edward referred us to rule 11 of the Code, which provides that a health agency that holds health information must not disclose the information unless the case falls within one of the recognised exceptions to confidentiality specified.  Mr Edward submitted that none of the exceptions applied. He referred us to para

[23] of Judge McGuire’s judgment, where the judge said this:

Ms McGuire [counsel for the Crown] separately raises Rule 11(2)(d) of the Health Information Privacy Code under the Privacy Act 1993 as justifying Dr Matete’s initial disclosure to the Police. However, disclosure is permissible under the Rule only where the doctor believes on reasonable grounds that it is not practicable or desirable to obtain individual authorisation. Here I conclude it was both practical and desirable to obtain individual authorisation.

[21]   That is all Judge McGuire said on this topic. Although His Honour does not expressly so state, it would appear that he did not consider disclosure justified by rule 11(2)(d).

[22]   Unfortunately, His Honour does not appear to have been referred to the Code in its entirety. We consider that Dr Matete’s call to the police and disclosure of the accused’s admission was justified under one or both of the following heads. First, information may be disclosed if the agency believes, on reasonable grounds, that the disclosure is authorised by the individual concerned: see rule 11(1)(b). On the evidence before the court, it appears that Dr Matete believed, on reasonable grounds, that the accused had authorised the disclosure. Dr Matete gave evidence to the effect that he had told the accused that he needed protection and that the best way to get that was to have the police involved. He said that the accused had indicated to him that “it was all right to involve the police”. Dr Matete said that the accused had indicated “that he felt a  sense  of  relief  that  this  matter  was  out  in  the  open”. Dr Matete said that he believed the accused had consented to his contacting the police. He also said that at the time the accused was “very lucid” and that his mood was stable. There was no evidence to the contrary. The accused did not give evidence on the voir dire.

[23]   In those circumstances, based on the evidence before the court, we conclude that the disclosure to the police was authorised by the accused. To some extent, that finding is bolstered by the accused’s subsequent conduct in voluntarily giving a statement to the police, even though he was told he was under no obligation to do so.

[24]   Even if, contrary to this view, Dr Matete had decided not to obtain the accused’s authorisation before calling the police, we consider his actions would have been justified under rule 11(2)(d). Under that rule, disclosure of information is justified if it is necessary to prevent or lessen a serious and imminent threat to public safety or to the life or health of another individual. In this case, Dr Matete knew that the accused was living in a house with a young male whom the accused said he had already abused. The accused was clearly worried that that abuse would continue. So was Dr Matete. That threat to that minor and potentially to other young males in the community was both serious and imminent.

[25]In our view Dr Matete did not breach the 1994 Code.

[26]   Finally, Mr Edward referred to the “common law” duty to preserve the confidentiality of communications made by a patient to his or her medical adviser. Mr Edward cited no authority for that broad proposition. It is certainly true that equity imposed on Dr Matete, as an employee of Lakeland Health, a qualified obligation of confidence: see The Laws of News Zealand, “Medical Practitioners” para 21. But that duty of confidence has never been absolute. The qualifications  have been recognised in a number of cases, perhaps most definitively in the well- known case of Tarasoff v Regents of the University of California 17 Cal 3d 425; 551 P 2d 334 (1976). In that case the Supreme Court of California considered the competing considerations and laid down guidelines as to when disclosure was appropriate. When giving evidence on the voir dire, Dr Matete said that, in deciding what he should do after the accused made the disclosure to him, he had fully reviewed the circumstances “within Tarasoff principles”.

[27]   It is not necessary to explore the extent of the equitable duty of confidence. That is because if a medical practitioner complies with the 1994 Code, the courts will not impose a higher duty on him or her via equity. In this case, for reasons already given, we have found that Dr Matete, on the evidence, did not breach the 1994 Code. For that reason, we also find that he did not breach the equitable duty he owed to the accused.

[28]   For these reasons, we conclude that Dr Matete should not be criticised for the action he took. He did nothing wrong.

[29]   We therefore conclude that neither Detective McLeod nor Dr Matete acted in any way improperly. In those circumstances, there is no scope for exclusion of the evidence on the basis of unfairness.

Result

[30]   We dismiss the appeal. We confirm Judge McGuire’s order that Detective McLeod’s proposed evidence is admissible, although for different reasons from those articulated by Judge McGuire.

[31]   We need to express one reservation. The case before us proceeded on the basis that there had been no breach of the Bill of Rights by Detective McLeod. What was not explored in the court below was whether, given the accused’s mental disorder, his rights were properly brought home to him. In certain circumstances, more than a bare statement of s23 rights may be necessary in cases where the suspect has a mental or physical disability which could interfere with his or her comprehension of the rights: see R v Mallinson [1993] 1 NZLR 528 (CA) at 531 and R v Dubovsky CA104/00, 25 May 2000 at [5]. We are not to be taken as suggesting that there was a breach of the Bill of Rights or that the statement may prove inadmissible on that ground. All we are observing is that that question has not been explored.

Solicitors:

Crown Law Office, Wellington