Atlas v DPP [2001] VSC 209

Supreme Court of Victoria|2001-07-19|Before: Bongiorno J

Criminal procedure - Subpoena for production - Inspection of documents - Medical and like files - Confidentiality - "Protected evidence" - Evidence (Confidential Communications) Act 1998 - Evidence Act 1958 ss 32B, 32C, 32D, 32E, 32F, 32G.

On 10 December 1998 the first defendant filed a presentment in the County Court against the plaintiff alleging nine counts of indecent assault contrary to s 68(3A) . Three of those counts allege indecent assaults against J. All of the counts on the presentment allege events said to have occurred more than 20 years ago. On the same date the then fixed trial date of 14 December 1998 was vacated and a new trial date of 17 May 1999 fixed. On that date that trial date was vacated and the matter was re-listed for 30 August 1999. These delays in the criminal process were caused by administrative necessity in the County Court.

In anticipation of preliminary arguments, including an argument as to the applicability of the Evidence (Confidential Communications) Act 1998 (which amended the Evidence Act 1958), the matter was listed again before the Court on 23 and 28 June 1999. At the second of those hearings the Chief Judge allocated the trial to a judge to deal with the preliminary matters referred to prior to the fixed trial date of 30 August.

On 14 May 1999 the solicitor for the plaintiff had issued a subpoena for production[1] addressed to the Medical Records Manager, Royal Melbourne Hospital, the Medical Records Officer, Melbourne Clinic and the Medical Records Officer, Larundel Psychiatric Hospital to produce documents described as :-

"medical file containing all medical reports, records, file notes and documents relating to (J)".

On 20 July the plaintiff was arraigned on the presentment referred to and pleaded not guilty to all counts. The subpoenas were called on and documents produced in answer to each of them. The plaintiff then applied to inspect the subpoenaed material. His application was resisted by the third defendant on the grounds of public interest immunity and an immunity allegedly provided by s 120A Mental Health Act 1986. After hearing argument, the judge rejected the third defendant's objections to production on both grounds and found that the plaintiff had a legitimate forensic purpose in seeking production of the file relating to J produced by the third defendant. The judge then heard argument as to the effect of the Evidence (Confidential Communications) Act 1998, which had then recently inserted Division 2A into Part II of the Evidence Act 1958 (referred to generally in this judgment as the new Victorian provisions), on the plaintiff's application to inspect the documents produced on subpoena. There was apparently no discussion as to whether the plaintiff had a legitimate forensic interest in the documents produced in response to the other two subpoenas.

In a written ruling delivered 22 July 1999 the judge held that the new Victorian provisions applied to the subpoenaed documents and that the effect of them was that the documents produced could only be made available for inspection by the plaintiff after leave had been granted to adduce evidence in accordance with s 32C of the new Victorian provisions. This ruling was given without anyone (including the judge) inspecting the documents. To date, there has been no judicial determination as to whether the documents, or some of them or some parts of some of them, contain information which would fall within the definition of "confidential communication" contained in the new Victorian provisions. It is probable that some do. It is equally probable that some do not.

The transcript of the proceedings before the judge shows that immediately after he delivered his ruling discussion followed as to a review of that ruling in this Court or the Court of Appeal, during which counsel for the plaintiff raised the question of whether such a review might constitute an inappropriate fragmentation of the criminal process. The judge dismissed that consideration on the basis of the importance of the point to be decided and the stage the trial had reached.

On 2 August 1999 counsel for the plaintiff and counsel for the Crown jointly approached the judge with a request that he examine the subpoenaed material himself and grant access to so much of it as he considered fell outside the definition of confidential communication contained in the new Victorian provisions. The application was contained in a document signed by both counsel and sent by facsimile to His Honour, who was sitting on circuit at Morwell.

The judge did not respond to the application of 2 August until the matter was mentioned before him in Melbourne on 30 August. At that time he refused all access to the subpoenaed documents saying that it would not be proper or useful for him to conduct an examination of any of the subpoenaed material before the matter was considered by this Court. The trial date was vacated and the matter adjourned to a date to be fixed. I was informed by counsel that all of the subpoenaed material is still in the custody of the primary judge.

This proceeding by way of originating motion was instituted on 29 September 1999 naming the DPP and the primary judge as defendants and seeking declarations as to the applicability of the new Victorian provisions to the subpoenaed documents, orders for inspection of those documents or some of them and an order that the issues of law raised by the proceeding be referred to the Court of Appeal pursuant to s 17B (1) Supreme Court Act 1986.

On 28 October 1999 a judge of this Court ordered, by consent of the parties, that the proceeding be argued before the Court of Appeal.

On 18 August 2000 the Court of Appeal refused leave for the matter to be argued before it on the ground that no appropriate issue or question had been isolated by the parties such that it could or should be dealt with by that Court. In refusing leave the Court of Appeal also observed that the proceeding itself demonstrated the vice of seeking to interrupt criminal proceedings by the processes of the civil law and noted that the proceedings seemed to be deficient for want of at least one party, namely the Secretary of the Department of Human Services, who had opposed the plaintiff's application before the primary judge. The Court also mentioned the case of R v Young[2] and the fact that the Attorney-General of New South Wales had been represented before the Court of Criminal Appeal in that case, which bore some resemblance to this proceeding.

On 14 December 2000, on the plaintiff's application, the Director of Human Services and the Attorney General of Victoria were added as parties to the proceeding and leave was granted to file an amended originating motion. The principal relief sought in the amended originating motion is an order in the nature of certiorari removing into this Court the order of the second defendant, constituted by the primary judge, of 30 August 1999 (sic) that the plaintiff be refused inspection of any of the documents and files produced in answer to the subpoenas issued on 14 May 1999, and the quashing of such order. Declarations are also sought as to the application of the new Victorian provisions to the subpoenaed documents and as to the plaintiff's right to inspect them. I should also note that the amended originating motion also seeks an order, pursuant to s 17B (1) Supreme Court Act 1986, that the issues of law raised by the proceeding be reserved for consideration by the Court of Appeal as did the originating motion as originally issued. However, counsel for the plaintiff before this Court did not press any application that the matter should be referred yet again to the Court of Appeal.

On the hearing of this matter before this Court the plaintiff, the first defendant and the third defendant were represented by counsel. The second defendant (which had been earlier substituted for the primary judge so as to make the proceeding comply with Rule 56.01(3) Rules of Civil Procedure) had, in accordance with the usual practice, announced at an earlier stage that it would abide the order of this Court. There was no appearance for the Attorney-General but counsel for the third defendant told the Court that he was instructed that the Attorney-General did not wish to take any part in the argument having regard to the third defendant's opposition to the plaintiff's application and the Attorney's apparent congruity of interest with that position.

It is appropriate, at the outset, to deal with the question as to whether this proceeding constitutes an unjustified fragmentation of the criminal process so that the plaintiff should be refused relief, as a matter of discretion, even if grounds for granting it might otherwise exist.

In Sankey v Whitlam[3] the High Court considered the use of the declaratory power by a superior court on questions of evidence or procedure arising during the course of criminal proceedings in an inferior court. Gibbs ACJ considered that the circumstances must be most exceptional to warrant the grant of such relief (at 25). He considered that such applications for declarations in such circumstances are:-

"........likely to be dilatory in effect, to fragment the proceedings and to detract from the efficiency of the criminal process. I am not intending to criticise those concerned with the conduct of Bourke v Hamilton [1977] 1 NSWLR 470, or to show any disrespect for the careful judgments delivered in that matter - indeed I have derived much assistance from them - when I say that that case provides an example of the way in which criminal proceedings may be needlessly protracted if they are interrupted by an application for a declaration - in the end the declaration sought was refused but the proceedings had been delayed for the space of almost a year. The present case itself is another regrettable example of the delay that can be caused by departures from the normal course of procedure. For these reasons I would respectfully endorse the observations of Jacobs P. (as he then was) in Shapowloff v Dunn [1973] 2 NSWLR 468 at 470, that a court will be reluctant to make declarations in a matter which impinges directly upon the course of proceedings in a criminal matter. Once criminal proceedings have begun they should be allowed to follow their ordinary course unless it appears that for some special reason it is necessary in the interests of justice to make a declaratory order. Although these remarks may be no more than mere "administrative cautions"(c_f Ibeneweka v Egbuna_ [1964] 1 WLR 219 at 224) I nevertheless consider that if a judge failed to give proper weight to these matters it could not be said that he had properly exercised his discretion".

Whilst Sankey v Whitlam was concerned with the determination of questions arising during a committal rather than a trial upon indictment as here, the principles are, at least, equally applicable, particularly having regard to the fact that the primary judge in this case was seized of the matter, the accused had been arraigned and the trial had, accordingly, commenced. The criminal proceedings themselves, (in the sense that term was used by Gibbs ACJ in Sankey) of which the trial was but one stage, had commenced some considerable time earlier when the original charges were laid by the filing of charges against the plaintiff in the Magistrates' Court, presumably by a police informant.

In Cain v Glass (No.2)[4] the New South Wales Court of Appeal was concerned with the question as to whether a magistrate, who was conducting a committal, erred in law in upholding a claim of public interest immunity in respect of documents identifying witnesses whom the applicants might wish to call in their defence. An application to Maxwell, J in the Supreme Court for declaratory relief was refused on the ground, inter alia, that the applicant did not establish the existence of exceptional circumstances calling for the intervention of the Court. On appeal, Kirby P, although dissenting in the result, agreed with the other Justices of Appeal that the exercise of the Court's declaratory jurisdiction in such a case should be confined to circumstances described as "most exceptional", "exceptional" or "special" (at 235). His Honour referred, amongst other reasons, to the undesirability of the remedies of declaration or the prerogative writs being misused to justify transfer to the superior courts of matters committed by law to (in that case) the magistracy. He also referred to the undue advantage that may be given to rich and powerful defendants to interrupt and delay the operation of the criminal law in a way not so readily available to ordinary citizens. There is no evidence here that the plaintiff is either rich and powerful or has in any way sought deliberately to delay his trial. Nevertheless, the trial has been delayed for two years.

Kirby P. considered a similar question in a case involving the legality of an indictment in Anderson v Attorney General[5] where he said (at 200);-

"The jurisdiction of the Court to make a declaration of the law applicable to the indictment against the claimant was not disputed by the Attorney General. However the Court's disinclination to do so in criminal cases, particularly in circumstances where proceedings are in the charge of a judge who at this very moment is beginning the trial, has been frequently stated. Courts such as this will limit their intervention to special cases. They will intervene only in the "most exceptional" circumstances; see Gibbs, ACJ in Sankey v Whitlam (1978) 142 CLR 1 at 25, or for "some special reason" (Ibid, Mason J at 82); see also Bacon v Rose [1972] 2 NSWLR 793 at 797; Bourke v Hamilton [1977] 1 NSWLR 470 at 479; Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 at 104 and Lamb v Moss [1983] FCA 254; (1983) 49 ALR 533 at 545".

The law is undoubtedly the same in this State. In Rozenes v Beljajev[6] the Full Court (Brooking, MacDonald and Hansen JJ) said, in considering the question of whether it would be appropriate to grant declaratory relief in respect of a ruling on evidence made by a trial judge prior to the commencement of a trial:-

"In the criminal jurisdiction an important consideration will be the need to observe and not fragment the ordinary, and orderly, process of a committal or trial. That consideration would apply with particular force "where proceedings are in charge of a Judge who at this very moment is beginning the trial"; Anderson v Attorney General for New South Wales (1987) 10 NSW LR 198 at 200 per Kirby P. Such fragmentation should be avoided unless there are exceptional or special circumstances. It is sufficient to refer in this context to: Sankey; R v Iorlano [1983] HCA 43; (1983) 151 CLR 678; Lamb v Moss and Brown [1983] FCA 254; (1983) 76 FLR 296; Yates v Wilson [1989] HCA 68; (1989) 168 CLR 338; Beljajev v Director of Public Prosecutions [1991] HCA 16; (1991) 173 CLR 28; Harland-White v Gibbs [1993] VicRp 70; [1993] 2 VR 215; re Rozenes; ex parte Burd [1994] HCA 11; (1994) 68 ALJR 372. These considerations apply whether the application be for a declaration or other form of judicial review such as relief in the nature of certiorari".

The correctness of this passage has been subsequently affirmed by the Court of Appeal in DPP v Denysenko[7], per Brooking JA at 316. See also Murray Goulburn Co-Op Limited v Blennerhassett[8] and Francis v Solicitor for Public Prosecutions[9].

Upon the hearing of this matter before the primary judge the question of fragmentation of the criminal process (which would be brought about by the bringing of the proceeding with which this Court is now concerned) was raised in the context of counsel for the plaintiff's application that the trial be adjourned sine die to enable this proceeding to be brought_._ The application for such adjournment was not opposed by the Crown, nor was the judge referred to any of the authorities referred to above.

Notwithstanding the fact that the Crown acquiesced in the course proposed by counsel for the plaintiff, in granting the application to adjourn the trial the primary judge was in error. He took into account an irrelevant consideration, namely the desirability of having this Court review his ruling on the applicability of the new Victorian provisions to the subpoenaed material the plaintiff wished to inspect before the trial proceeded. His obligation at that point was to proceed to hear the trial, applying the ruling he had made as to inspection of the documents produced on subpoena as he had made it. Had the plaintiff been convicted on any of the counts involving J then his ordinary rights of appeal would have enabled the correctness of that ruling to be challenged in the Court of Appeal if it was relevant to his conviction. There was no justification in terms of the cases discussed above for an adjournment of the trial at that point to have the ruling made by the primary judge reviewed in this Court (or, as then contemplated, in the Court of Appeal).

Many questions arise before and in the course of a trial in respect of which a trial judge would be much assisted by a definitive ruling of this Court or the Court of Appeal. However, the proper application of the principles of criminal procedure means that trial judges are required to make rulings on evidence or determine points of procedure as and when they arise either prior to or in the course of criminal trials (or, for that matter, civil trials) no matter how novel or difficult the points raised might be. The appeal system exists to ensure that an error made by a trial judge which leads to the possibility of a miscarriage of justice in the result can be corrected in the Court of Appeal.

On the other hand, when a trial judge or committing magistrate accedes to a request to stop the criminal process continuing whilst one of the parties (almost always the accused) seeks a remedy using the civil processes of a supervisory court, control of the criminal process passes to a large extent into the hands of the applicant for such remedy as occurred in this case. The result is that delay is inevitable and justice suffers. Even if the Crown is diligent in ensuring that the civil process is pursued with vigour and competence delays still commonly occur to the inappropriate detriment of the criminal process.

On the hearing before me there was no opposition from the Crown to the matter being dealt with on its merits. No argument raising the question of fragmentation was put. Indeed counsel for the DPP told the Court that he had specific instructions to the effect that the Crown concurred in the plaintiff's issuing of this proceeding in order to have the questions raised determined in this Court. The position taken by the Crown is surprising, having regard to the legal principles discussed above. They are binding, as much on the Crown as they were on the primary judge.

Finally, it should be noted that the undesirability of fragmenting the criminal process is not confined to any particular part of that process, but rather to the process as a whole. Accordingly, it is not to the point that in this case the trial had not commenced or had only just commenced at the time the application for an adjournment to pursue a remedy in this Court was made. The principle would make little sense if it applied only to the particular phase of the criminal process which was immediately threatened by being interrupted. Any interference with any part of the process for other than reasons as grave as those acknowledged in the cases referred to is antithetical to the proper and just disposition of criminal cases.

The question which must now be addressed is how this case should be disposed of having regard to the principles to which I have referred.

The fact of the matter is that the judge did adjourn the trial and the plaintiff did issue this originating motion. It is two years since the plaintiff was arraigned. Regardless of what this Court now does the criminal process has been fragmented. If the plaintiff's application for prerogative or declaratory relief was to be refused now (because his issuing of this proceeding constituted an unjustifiable fragmentation of the criminal process) the trial would proceed on the basis of the ruling given by the primary judge in July 1999. If that ruling is wrong a danger exists that the plaintiff's trial could result in a miscarriage of justice which would require the matter to be brought back to the Court of Appeal. One possible consequence of that is that a new trial would be ordered, thus postponing the finalisation of this matter for some considerable time yet. These matters cannot be disregarded in reaching a conclusion as to whether the matter should be now dealt with. The Court cannot overlook the fact that the offences alleged against the plaintiff are already well over 20 years old.

Applying the principles which I have discussed to this case as it now stands I consider that there are exceptional reasons as to why this proceeding should be disposed of so that any error in the trial judge's ruling is corrected. The delay which has already occurred, the Crown's concurrence in the plaintiff's seeking an adjournment of his trial and issuing this proceeding, the antiquity of the alleged offences, the nature of those offences and the fact that I have concluded hereunder that the primary judge's ruling was wrong, together, make up exceptional or special reasons justifying intervention.

I turn then to consider the correctness of the primary judge's ruling.

The Evidence (Confidential Communications) Act 1998 inserted Division 2A into Part II of the Evidence Act 1958. Section 1 stated its purpose as being to amend:-

"........the Evidence Act 1958 so as to protect from disclosure in legal proceedings confidential communications between the victim or alleged victim of a sexual offence and a medical practitioner or counsellor. The Act enables a court to order disclosure but specifies matters about which the court must be satisfied before doing so."

The amending Act defines "confidential communication", "protected evidence", "protected confider", "counsellor" and a number of other terms. Significantly it contains only one substantive provision which commands obedience to a particular course of action. Section 32C (of the Evidence Act 1958 as amended by the new Victorian provisions) provides that evidence is not to be adduced in a legal proceeding if it would disclose a confidential communication, or the contents of a document recording a confidential communication, unless the court grants leave. The rest of the Division sets up machinery provisions for the obtaining of leave to adduce evidence protected by s 32C(1), restricts the granting of leave in certain circumstances and sets out five circumstances in which the adducing of protected evidence is not prohibited. Its substantive provisions conclude with s 32F which provides that certain ancillary orders may be made upon the granting of leave so as to limit the possible harm likely to be caused by the disclosure of protected evidence, including orders as to in camera hearings, suppression of publication and the like.

The purpose clause which comprises s 1 of the amending Act envisages the protection from disclosure of confidential communications. The operative section of the Act effects this by prohibiting a party to a legal proceeding (civil or criminal) from adducing protected evidence in that proceeding. It is necessary to examine the concepts of information and evidence, and the relationship between them, in the context of a legal proceeding to understand the effect of those provisions.

In the course of a legal proceeding information of various kinds is collected, processed and exchanged, between the parties to the litigation, sometimes between a party and someone outside the litigation and sometimes between a party or a witness and the court hearing the case. Sometimes the information is contained in a document; sometimes it is not. However, by no means all information is evidence. To qualify as evidence, information must satisfy not only a test of relevance but must also comply with certain technical requirements known collectively as the rules of evidence.

Much of the information collected, processed and exchanged in the course of a legal proceeding is not evidence at all. It may not satisfy the relevance criteria. It may not comply with one or other of the technical rules of evidence. It may be inadmissible hearsay. Some of the information collected by a solicitor from his client or from a potential witness or information obtained by an investigator (whether documentary or otherwise) for use in any one of a number of different ways in a legal proceeding (e.g. for use in cross-examination) may never qualify as evidence. Similarly, information exchanged between two opposing legal practitioners in the course of negotiation, mediation or some other dispute resolution process would often not qualify as evidence and would seldom be described as such. Many other examples could be given.

The prohibition contained in s 32C is a prohibition on adducing evidence of a particular kind. Thus the prohibition is concerned only with evidence, not with information which is not evidence but which is nevertheless collected, exchanged or processed in the course of a legal proceeding. But the limitation on the prohibition effected by s 32C does not end there. Not only is that prohibition confined to that information which can properly be described as evidence, it is also confined by reference to what is done with that evidence. It prohibits protected evidence being "adduced in a legal proceeding".

The concept of adducing evidence in a legal proceeding is well known and well understood. The verb "adduce" is used in relation to the noun "evidence" in more than 30 current Victorian statutes[10]. In each instance the two words are used to denote the concept of bringing forward evidence for the consideration of the tribunal of fact (judge or jury) for the purpose of seeking to prove or disprove a fact or facts relevant to a matter in dispute.

It would be unusual to speak of the collection of information by a solicitor in the course of preparing a case as adducing evidence in a legal proceeding. Likewise it would be inappropriate to describe the communication of information from a solicitor to a barrister in a brief as adducing evidence in a legal proceeding. In particular for present purposes, the phrase "adduced in a legal proceeding" is completely inapt to describe the production of documents to a court in response to a subpoena for production or, for that matter, the production of documents to a party for inspection following discovery (including pre-action or preliminary discovery, and significantly, third party discovery). Such documents are not necessarily brought forward for consideration by the tribunal of fact for the purpose described above. They are brought forward because of a legally enforceable command directed to the person in whose possession they are to produce them so that they can then be dealt with as directed by the court (or, in the case of discovery, by the rules of court) in accordance with known legal principles, and subject to known legal safeguards.

In Northern Territory v GPAO and Ors[11] the High Court considered questions arising from the issue and return of a subpoena requiring the production of documents to the Family Court. It held (Gleeson CJ and Gummow J Gaudron J concurring) that insofar as the Evidence Act 1995 (C'th) is concerned with the adducing of evidence it does not deal with the obligations of a party to whom an order in the nature of a subpoena is addressed to produce documents to the Family Court, nor with the grant of leave by that Court to inspect or otherwise make use of documents which have been produced in answer to a subpoena.

Although in that case Kirby J did not consider it necessary to decide whether the Evidence Act 1995 (C'th) applied to ancillary procedures such as discovery or the production of documents on subpoena when it referred to "adducing in evidence", in the subsequent case of Mann v Carnell[12] he said ;-

"The Evidence Act does not apply The verb "adduce", used in the Act, means nothing more than to bring forward for consideration. A great deal of inconvenience would be avoided if the bringing forward of evidence for use in a later trial (as by responding to an order for discovery, a subpoena or some other ancillary process) were held to fall within the Act. This may not have been what the Australian Law Reform Commission subjectively intended because of its limited terms of reference. But the ultimate question for a court is what the Parliament meant by the words which it enacted. A host of undesirable and even irrational distinctions between the law applicable to the ancillary and the substantive parts of the same proceedings would be avoided if a broad view were taken of the phrase "adducing of evidence". That is why in GPAO, I preferred to reserve my opinion on the point. Upon my analysis in that case, the question did arise for decision. However, all the other members of this Court held in GPAO that the Act did not apply to the obligations of a person to whom a subpoena had been addressed. That holding must be taken as settling the question of statutory construction notwithstanding the arguments that, in my view, exist for a wider operation of the Act and for its application to ancillary proceedings intimately connected with the adducing of evidence for use in a later court hearing."

On the same day as the decision in Mann was handed down the High Court decided Esso Australia Resources v FCT[13]. In that case it reconsidered its decision in Grant v Downes[14] so as to rationalise the criterion for the determination of legal professional privilege attaching to a communication (usually recorded in a document) produced in ancillary proceedings (discovery, subpoena or the like) with the criterion for legal professional privilege, or "client legal privilege" as it is called in the Evidence Act 1995 (C'th), set out in ss 118 and 119 of that Act. The whole court (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby and Callinan JJ) accepted that the statutory language in ss 118 and 119 limited the application of those sections to the adducing of evidence as that term is generally understood. The majority (Gleeson CJ, Gaudron and Gummow JJ) after setting out the relevant provisions of the Act dealing with the subject of client legal privilege said[15];-

"Those sections appear in Ch 3 (ss 55-139) of the Act which, save for presently immaterial exceptions is concerned with the admissibility of evidence. This limitation in the language of the statutory provisions was noted, and was essential to the decision of this Court in Northern Territory v GPAO (1999) 196 CLR 553. The explanation of the wording of the Act is set out above. The statutory language is clear. It deals with the adducing of evidence. That would cover adducing evidence in interlocutory proceedings as well as at a final hearing, or on an appeal, but it does not cover all the circumstances in which a claim for privilege might arise. To take the most obvious example, it would not cover the circumstances considered in Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52. The claim in contention in the present case was not a claim that certain evidence could, or could not, be adduced. It was a claim that the appellant was not obliged to make certain written communications available for inspection by the respondent. Sections 118 and 119 are expressed in language which does not address that claim. The refusal of the majority in the Full Court to apply the statutory provisions otherwise than in accordance with their terms was right in principle, and was consistent with the decision of this court in Northern Territory v GPAO."

The new Victorian provisions with which this case is concerned were inserted into that part of the Evidence Act 1958 entitled "Witnesses". They appear immediately after divisions of the Act dealing with persons who are capable of testifying in a proceeding and the privileges, disabilities and obligations of witnesses. They are followed by divisions relating to the examination and cross examination of witnesses and the manner of giving evidence. Significantly, the new Victorian provisions were not placed in Part I of the Act entitled "The Means of Obtaining Evidence"; a part dealing, among other things, with subpoenas.

Although a subpoena for production is defined by reference to documents produced "for evidence" (Rule 42.01 Rules of Civil Procedure) persons producing documents pursuant to a subpoena will often not be witnesses and the documents they produce will often not be tendered or, to use the words of s 32C, not "be adduced in a legal proceeding" unless that phrase has a much wider meaning than the words suggest. In many instances the documents will not be "evidence" as that word is properly understood. They may be no more than documents containing information which the party who issued the subpoena may have (or alleges he has) a legitimate forensic purpose in having produced. (R v Saleam[16]; Sankey v Whitlam, supra, et al).

In the third of the High Court cases to which I have referred, Esso, the Court also rejected an argument, based on decisions of the Full Federal Court and the New South Wales Court of Appeal (Adelaide Steamship Co Limited v Spalvins[17] and Akins v Abbey Group Limited[18]) that as the legislature had changed the criterion upon which legal professional privilege could be claimed for communications sought to be adduced in evidence, it had also, by analogy or derivation, changed the common law criterion for legal professional privilege when it was claimed in ancillary proceedings such as discovery or the answering of a subpoena. The argument was put that the principles applicable to testimony at trial provided the paradigm from which the principles applicable to ancillary processes were derived. Thus, any change to the paradigm should be reflected in the derivatives. The Court rejected this argument on the ground that the statute with which it was there concerned (ss 118 and 119 Evidence Act 1995 (C'th)) had been enacted by only two of the nine legislatures in Australia, namely the Commonwealth and New South Wales. Accordingly, a consistent pattern of legislative policy to which the common law should be adapted had not, so far at least, emerged. As there is but one common law for the whole of Australia ( Lange v Australian Broadcasting Corporation[19]) it should not be modified, by analogy or derivation, to accord with statutes applicable only to litigation conducted in Federal Courts, and the Courts of New South Wales and the A.C.T.

The rejection by the High Court of an analogous or derivative modification of the common law brought about by the enactment of ss 118 and 119 Evidence Act 1995 in New South Wales and the Commonwealth necessarily means that any similar argument with respect to the new Victorian provisions must likewise fail. The recognition of a new common law privilege attaching to the production of documents containing certain confidential communications as defined in the new Victorian provisions would involve not merely the redefinition of an already existing recognised privilege (as would have been the case had the criterion for client legal privilege in ss 118 and 199 Evidence Act 1995 (C'th) been extended by analogy to apply to a claim of legal professional privilege in answer to an application for production by way of ancillary process) but the creation of a completely new category of common law privilege. The argument against such a proposition is accordingly stronger than that which the High Court accepted in Esso, when it rejected the analogous or derivative modification of the common law criterion for legal professional privilege by reason of the enactment of modifying statutes in two jurisdictions.

R v Young[20] was decided by five judges of the New South Wales Court of Criminal Appeal before the High Court delivered its judgments in Mann and Esso. It concerned the interpretation of amendments to the Evidence Act 1995 (NSW) which are similar (but not identical) to the new Victorian provisions. The legislative provisions in each state prohibit evidence being "..........adduced in a legal proceeding.........." if it would disclose a protected confidence or the contents of a document recording a protected confidence (NSW) or a confidential communication or the contents of a document recording a confidential communication (Victoria). The New South Wales definition of "protected confidence" is similar to, but not identical with, the Victorian definition of "confidential communication".

The leading judgment was given by James J who identified four questions requiring consideration to resolve the issues there confronting the court. The first two questions concerned the applicability of the relevant New South Wales provisions to the production on subpoena of documents which recorded protected confidences. The third concerned a question of fact irrelevant to this case and the fourth raised the question as to whether documents containing protected confidences should themselves form a new category of documents immune from production on the ground of public interest.

The other four judges of the court (Spigelman CJ, Beazley JA, Abadee and Barr JJ) concurred with James J in his holding that the provisions of the Evidence Act 1995 (NSW) relating to protected confidences did not apply to production of documents on subpoena either directly, or derivatively in accordance with the principle discussed in cases such as Akins and Adelaide Steamship. On the other matter of law raised by James J's analysis of the problem, (whether protected confidences should form a new category of public interest immunity) the whole Court, with the exception of Beazley JA, considered that they should not, or at least, on the material then before the Court, they should not. This question does not arise in the present case as the primary judge dismissed arguments that he should refuse inspection of the documents produced before him on the ground of public interest immunity claimed by the third defendant and it can be assumed he would have done likewise in respect of the other two parties who produced documents if they had raised the same objection. No challenge to that ruling by the primary judge has been brought before this Court and, accordingly, I say nothing further as to the question of public interest immunity and confidential communications as defined in the new Victorian provisions.

James J held that an interpretation of the words used in the New South Wales provisions in accordance with their ordinary and natural meaning leads to a conclusion that they do not apply to ancillary processes such as the production of documents on discovery or in answer to a subpoena. He noted that the sections of the New South Wales Act which regulate protected confidences prohibit evidence being adduced. He referred to the joint judgement of Black CJ and Sundberg J in Esso when it was before the Full Federal Court[21] and noted that their Honours drew a distinction between the adducing of evidence and the production of a document in a discovery context. He said[22];-

"Documents may have to be discovered or produced on subpoena, even though they would not be admissible in evidence. Furthermore, such documents, even if not admissible in evidence, may assist a party to whom the documents are discovered or produced, for example by leading to a train of enquiry; see Esso (at 518) per Black C J and Sundberg J."

James J examined at length the authorities on purposive construction, some of which are referred to below, including cases such as Jones v Wrotham Park Settled Estates[23] which defined the limited circumstances in which a court, in construing a statute, will read words into the statute to give effect to the meaning intended by Parliament. He concluded his review of those cases with the following passage from the judgment of McHugh J in Newcastle City Council v GIO General Ltd[24]:-

"Extrinsic material cannot be used to construe a legislative provision unless the construction of the provision suggested by that material is one that is 'reasonably open'. Even if extrinsic material convincingly indicates the evil at which a section was aimed, it does not follow that the language of the section will always permit a construction that will remedy that evil. If the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances. As Brennan CJ and I said in IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 12, even when a court adopts a purposive construction to remedial legislation it is not at liberty to give it a construction that is unreasonable or unnatural'."

Having held that the relevant New South Wales provisions did not directly relate to the production of documents on subpoena, James J went on to consider the argument that the common law applying to the production of documents on subpoena must be adapted or modified so as to accord with the Act. His Honour reached the conclusion that no such adaptation or modification of the common law had occurred by reason of the enactment of the New South Wales provisions. Having regard to the subsequent decision of the High Court in Esso this conclusion was undoubtedly correct and is of equal force when applied to any attempted construction of the new Victorian provisions.

That passage is particularly apposite to the present case when the width of the parliamentary purpose depends upon the construction put on the word "disclosure". As it would be "unreasonable or unnatural" to construe the words "adduce in evidence" other than as the High Court construed them in GPAO, Esso and Mann the purpose clause must be construed in that context. Thus it is disclosure in evidence with which the amending Act must be concerned.

Section 35 Interpretation of Legislation Act 1984 requires a court to prefer a construction of an Act that would promote the purpose or object underlying the Act over a construction which would not promote that purpose or object. Section 35(b) authorises the court to consider all indications provided by the Act itself, as well as reports of parliamentary proceedings and other extrinsic materials.

In this case the respondents relied upon the purpose clause referred to above as well as on the second reading speech of the Attorney General when moving the bill for the Act which inserted the new Victorian provisions into the Evidence Act 1958. They contended that these intrinsic and extrinsic materials distinguish this case from Young and compel a reading of s 32C wide enough to encompass the production of documents on subpoena.

The purpose clause in s 1 of the amending Act refers to the object of the amendment as the protection from "disclosure in legal proceedings" of confidential communications. It does not specify the extent (or width) of the disclosure referred to. It does not define disclosure. It says nothing as to whether the mischief to be dealt with by the amendment is disclosure to a particular person such as a party to a civil or criminal litigation, disclosure to the public at large or disclosure to some other defined group of persons having no legitimate interest in the information to which the amendment is directed. It is to the substantive provisions one must look to see the extent to which disclosure is to be limited. How did the Parliament carry out its intention if s 1 of the amending Act does not express the width of the protection it was intended to provide?

Parliament enacted words which have the effect of protecting certain material from being put before a court as evidence. It must be taken to have been aware of the common law powers of the courts as to the protection of information produced by ancillary processes and to the necessity for access to be had to such information, at least in certain controlled circumstances, to ensure that legal proceedings, particularly criminal trials, are conducted fairly with respect not only to the person to whom such information relates but also to accused persons. In particular, it could not have been the relevant Parliamentary intention to require an applicant for leave to adduce protected evidence to give notice of his intention to apply for such leave (as under s 32C) and yet deprive him (or at least his legal advisers) of the ordinary and well recognised means of determining whether relevant, admissible and perhaps important evidence might be available. The very requirement that leave must be sought to adduce protected evidence carries the necessary implication that the party who must seek leave (or his legal adviser) must have the means of ascertaining the existence of relevant admissible evidence. In the course of this case counsel for the DPP conceded that Parliament would not have intended to stop an accused perform from being able to place before a court evidence which cast doubt on his guilt. It follows that it would not have intended to deprive him of the means of ascertaining whether such evidence existed.

The object of protecting the confidentiality of protected communications is not inconsistent with ensuring that the accused's ordinary common law rights are protected, provided a court properly applies s 32C to relevant evidence sought to be adduced and appropriately protects confidential material produced on subpoena as described below. The principle that all evidence should be available (subject to its meeting the statutory criteria set out in the new Victorian provisions where they apply) to enable the Court to discover the truth in the course of a trial is not inconsistent with the purpose of the amending legislation if it is given the scope I have allowed it..

Accordingly, a purposive construction of the relevant statutory provisions, as required by s 35 Interpretation of Legislation Act 1984 and cases such as Kingston v Keprose Pty Ltd[25] (particularly at 421 - 424 per McHugh JA), Saraswati v The Queen[26], Cooper-Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation[27] and Catlow v Accident Compensation Commission[28], results in the same conclusion as a literal reading of the words used in the relevant sections.

Having construed s 32C in this way it is unnecessary to refer to the Minister's second reading speech on the bill which introduced the amending legislation. It is sufficient to note that that speech describes the amending legislation as striking

".....an appropriate balance between protecting confidential communications between the victim and his or her doctor and counsellor and ensuring the court has before it all the appropriate and relevant evidence that relates to the case" (emphasis mine).

There is no conflict between this statement and the interpretation set out above.

The other significant difference (apart from the existence of the purpose clause in the amending Act) between the New South Wales provisions and the new Victorian provisions is the presence of ss 32C(6) and 32D(3) in the Victorian Act. These sub-sections are in the following terms;-

"32C. Exclusion of evidence of confidential communications [. . . . . . .] (6) For the purpose of determining an application for leave under sub-section (1) or (5), the court may order that the document be produced to it and may inspect it but must not make the document available, or disclose its contents, to the applicant for leave." "32D Restriction on granting leave

(3) Leave may be granted to adduce evidence of part of;-

(b) the contents of a document recording a confidential communication -

and, if so, that part of the document may be made available, or that part of its contents disclosed, in any manner that the courts thinks fit to the party seeking to reduce it in evidence."

Each of these sub-sections relates to an application by a party to litigation to adduce evidence of communications which would otherwise be excluded by s 32C(1). The sub-sections relate only to documentary evidence. They have no application to oral confidential communications which would likewise be prohibited from being adduced without leave by virtue of s 32C(1).

A document such as that contemplated by s 32C(6) and s 32 D(3) may come to light in a number of different ways. It may be in the possession of one or more parties to the litigation before the litigation commences. It may be in the possession of a witness who is called. It may be in the possession of a person who is present in court who could be called and required to produce it by virtue of s 11 Evidence Act 1958. It may be in the custody of the court by virtue of some compulsory process such as a subpoena. It may or may not have been the subject of an application by one or more parties for inspection and if it were, such inspection may or may not have been granted by the court.

Importantly, at the time at which a party makes an application to adduce evidence of a confidential communication contained in such a document the contents of that document may or may not be known to that party. It would seem that all that ss 32C(6) and 32D(3) are directed to is ensuring that whatever might be the state of knowledge of the applicant for leave to tender such a document in evidence at the time he makes that application if the court inspects that document for the purpose of determining the application for leave, then it must not make the document available or disclose its contents to that applicant until it has ruled it can be tendered. In some cases the applicant will already have seen the document or been made aware of its contents in some other way. The sub-section simply ensures that if an applicant has been denied access to a document, either by the court refusing him or her leave to inspect it upon its production on compulsory process or by the party who owns the document refusing him or her access to it in the exercise of his or her rights of ownership, the court will not, on an application for leave to adduce its contents in evidence, permit the applicant for leave to see it or learn of its contents unless and until leave is granted.

Construed in this way these provisions are consistent with the scheme of the new Victorian provisions generally, which is to protect the confidential communications to which it applies from disclosure in the course of evidence in a public court room. The legitimate protection of such confidential communications prior to an application to make them evidence can still be effected, if necessary, by the court applying long established protective mechanisms available to limit disclosure of material produced to a court as a result of compulsory process. As already stated it could not have been the intention of Parliament that the new Victorian provisions mean that the means of discovering the existence of perhaps important evidence is to be denied to (say) the legal advisers of an accused person.

Finally, the new Victorian provisions are closer in form to the provisions of the Evidence Act 1995 (C'th) to which Black CJ and Sundberg J were referring in Esso than were the New South Wales provisions being construed by James J in Young. Sections 118 and 119 Evidence Act 1995 (C'th) and s 32C Evidence Act 1958 all commence with the words: "Evidence is not to be adduced...............".

For the above reasons the new Victorian provisions had no application to the matters required to be considered by the primary judge when he determined the application of the plaintiff to inspect the documents produced on subpoena. The application should have been determined without reference to those provisions.

My conclusion that the new Victorian provisions have no application where a party seeks to inspect documents produced on subpoena does not mean that the plaintiff is entitled, as of right, to inspect those documents. He has a right to have his application for inspection dealt with by the Court in accordance with appropriate legal principles. Those principles may be found in cases such as Waind v Hill and National Employers Mutual General Association Ltd[29] per Moffitt P at 376; Commissioner for Railways v Small[30]; ex parte Tindall and Dryhurst[31] particularly at 247- 8; Penn-Texas Corp v Murat Anstalt (No 2)[32]; Burchard v Macfarlane[33]; Elder v Carter[34]; Summers v Mosley[35]; Rochfort v T.P.C.[36].; R v Saleam[37]; Alister v R[38] and Roux v Australian Broadcasting Commission[39]. This list is by no means exhaustive. The severe restrictions implied by law affecting documents produced under compulsory process are discussed in cases such as Riddick v Thames Board Mills[40], Harman v Home Office[41] and Taylor v Serious Fraud Office[42].

In this case, as I understand it, no one (including the primary judge) has yet looked at the documents. Until that is done it is premature to consider what course the trial court might or should take with respect to the plaintiff's application. Its choice is not merely between refusing inspection or permitting it in full. It has ample power to ensure that the rights of all persons interested in the documents (being not only the owners of the documents who have produced them on subpoena but also the person to whom the documents relate) are fully and adequately protected. For example, the person to whom the documents relate (in this case, J) may have a legitimate claim, such as would be protected by a court of equity, to confidential information recorded in some of the documents. (See generally Gurry, Francis Breach of Confidence Clarendon Press, Oxford 1984). If so, this may move the Court to take particular care as to what access is given to such of the documents as may contain such confidential information and to whom such access is given. Elaborate orders may need to be fashioned limiting, perhaps, the persons to whom access may be granted. The Court may consider it appropriate to confine inspection to the plaintiff's legal advisers (or only some of them) with or without specific undertakings as to the use to be made of any information derived from the documents. Restrictions on copying the documents may be necessary. Depending on the contents of the documents it may be necessary to undertake a delicate balancing exercise between the privacy of the person to whom the documents relate, the rights of those who own the documents and the need to ensure that the plaintiff receives a fair trial. Care must be observed to ensure that an applicant for inspection is not permitted to merely engage in a fishing expedition, trawling through confidential documents for no legitimate forensic purpose.

The considerations to be applied to the disposition of the plaintiff's application for inspection will only be able to be determined after the documents have been inspected by the primary judge and he determines what steps are necessary, having applied the common law principles to which reference has been made. Only then will he be able to ensure, by appropriate orders, that justice is achieved for the person to whom the documents relate and for the plaintiff. Documents produced on subpoena are in the custody of the court before which the subpoena is returned. That court must ensure that production of those documents, pursuant to a compulsory process, is used only for the legitimate forensic purpose for which the process exists.

The Full Court in Rozenes v Beljajev[43] raised, without deciding, the question of whether s 36A(2) County Court Act 1958 prevents the grant of relief in the nature of certiorari in relation to the trial of an indictable offence in the County Court. In the absence of a reconsideration by the Court of Appeal of cases such as R v Judge Frederico; ex parte Attorney Genera[44]l and R v Judge Martin; ex parte Attorney General[45] the law is that judicial review in the nature of certiorari lies to a County Court judge in the circumstances of this case if the grounds for such relief are present and no discretionary considerations render such relief inappropriate.

By determining that the new Victorian provisions applied to the documents produced before him on subpoena so as to require him to reject the plaintiff's application to inspect them, the primary judge committed an error of law which caused him to decline to exercise a jurisdiction which he had, namely the jurisdiction to consider and decide the plaintiff's application to inspect the documents in accordance with the correct common law principles. This constituted a jurisdictional error amenable to correction by judicial review; technically (probably) by orders in the nature of certiorari to remove the primary judge's order refusing the plaintiff's application for inspection to this Court to be quashed and the remission of the application to the County Court to be dealt with according to law.

An alternative way of analysing the error made by the primary judge would be to see it as an error of law on the face of the record and thus amenable to judicial review in the nature of certiorari. In Craig v South Australia[46] the High Court held that in the absence of some part of the reasons for the decision of an inferior court being referred to in its formal order (thereby making the reasons an integral part of that formal order) such reasons do not constitute "the record" for the purposes of certiorari. But in Victoria, s 10 Administrative Law Act 1978 provides that such reasons for decision do form part of the record. The error of law which I have identified is manifest in the primary judge's reasons for decision of 22 July 1999. As such they form part of the record for the purposes of judicial review in the nature of certiorari.

It seems immaterial which analysis of the error made by the primary judge in this case is preferred. Either leads to the same result.

As I have noted, the fragmentation of the criminal process which occurred when the primary judge adjourned the trial before him at the plaintiff's request to enable this challenge to his ruling to be undertaken might have constituted a discretionary ground for the refusal to grant an order in the nature of prerogative relief. However, for the reasons already advanced, the circumstances are such that the error made by the primary judge should be corrected, and corrected as soon as possible, so that the plaintiff's trial can proceed without further interruption. As no other discretionary bar to relief is apparent there is no impediment to the plaintiff's obtaining the relief which he seeks.

Accordingly, there will be the following orders;-

(1) An order that the decision of the County Court of Victoria constituted by His Honour Judge Holt of 22 July 1999 whereby an application by the plaintiff to inspect documents then produced before the Court in answer to a subpoena for production issued in his trial on certain counts of indecent assault alleged in a presentment filed 10 December 1998 was refused, be removed into this Court and quashed; and

(2) An order that the plaintiff's application to inspect the said documents be remitted to the County Court of Victoria to be determined according to law.

As all the relief needed by the plaintiff is provided by those two orders there is no need to address the question of declaratory relief. Had it been necessary to resort to it, declaratory relief would not have been inappropriate in the circumstances of this case: see Rozenes v Beljajev[47] above.

The conclusion numbered (4) of Phillips JA in Perkins v County Court of Victoria[48] concerning costs in respect of interlocutory proceedings relating to trials on indictment probably precludes any order for costs in this case. However, I shall invite the parties to consider the matter and file written submissions on costs within 7 days if they, or any of them, wish. In the absence of such submissions there will be no order as to costs.

[1] Rule 1.12 Supreme Court (Criminal Procedure) Rules 1998 applied Order 42 Supreme Court (General Civil Procedure) Rules 1996 to subpoenas issued in criminal proceedings after 25 March 1999. Thus the forms of common law subpoena (subpoena ad testificandum and subpoena duces tecum) were replaced by orders made under Order 42 in the criminal jurisdiction as well as in the civil jurisdiction of the Court. Although the provision was not extended to the County Court until 22 June 1999 (Rule 14.01 County Court (Miscellaneous) Rules 1999) it probably already applied to that Court by virtue of s 36A (2) County Court Act 1958. In any event the presence of the documents in Court in the custody of the persons who produced them would have been sufficient to enable the plaintiff to make his application for inspection: s11 Evidence Act 1958.

[10] e.g. Evidence Act 1958 s 149AB (2) (b): ".. . . evidence may not be adduced . . ."; s 149AB (3)(a):". . . adduced in evidence . . ."; Gas Industry Act 1994 s 16H (10)(b): ". . . adduces evidence . . ."; Evidence Act 1958 s 55A (1): ". . .evidence could not have been adduced . . ."; Transport Accident (Amendment) Act 2000 s 28 (6B): ". . . must not adduce material referred to . . in evidence . . . "; Crimes Act 1958 s 399A (1) ". . . adduce evidence in support of . . ."; Marine Act 1988 s 33 (2): ". . . he or she intends to adduce evidence in rebuttal . . ."; Magistrates Court Act 1989 s 47(1) (b) " . . . adduce evidence from a witness . . ." et cetera.

Evidence (Confidential Communications) Act 1998

Legislation Act 1984

Supreme Court (Criminal Procedure) Rules 1998

Supreme Court (General Civil Procedure) Rules 1996

County Court (Miscellaneous) Rules 1999

Transport Accident (Amendment) Act 2000s 28

(1987) 10 NSW LR 198

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Cases Cited (33)