Director of Public Prosecutions v Haywood

Legislative Framework

1. A protected confidence is defined in section 126A of the Evidence Act 1995 as meaning: "a communication made by a person in confidence to another person (in this Division called the "confidant") - (a) in the course of a relationship in which the confidant was acting in a professional capacity, and (b) when the confidant was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law or can be inferred from the nature of the relationship between the person and the confidant".
2. The documents produced under subpoena are medical records. The documents include information relating to mental health assessment of Mr Haywood. The material records communications between Mr Haywood and health professionals. The communications were given in the context of a medical consultation in which there exists at least an implied obligation not to disclose its contents. In R v Rogerson; R v McNamara (No 37) [2016] NSWSC 304 it was held that mental health records are "protected confidences". There is no doubt that the documents produced by Western NSW Local Health District includes "protected disclosures".
3. Section 126B of the Evidence Act 1995 provides that the Court may make a direction excluding evidence of protected confidences. The Court must give such a direction if the court is satisfied that harm will be caused by the disclosure and such harm outweighs the desirability of the evidence being given. Section 126B relevantly provides: Exclusion of Protected Confidences (1) The court may direct that evidence not be adduced in a proceeding if the court finds that adducing it would disclose - (a) a protected confidence, or (b) the contents of a document recording a protected confidence, or (c) protected identity information. (2) The court may give such a direction - (a) on its own initiative, or (b) on the application of the protected confider or confidant concerned (whether or not either is a party). (3) The court must give such a direction if it is satisfied that - (a) it is likely that harm would or might be caused (whether directly or indirectly) to a protected confider if the evidence is adduced, and (b) the nature and extent of the harm outweighs the desirability of the evidence being given. (4) Without limiting the matters that the court may take into account for the purposes of this section, it is to take into account the following matters - (a) the probative value of the evidence in the proceedings. (b) the importance of the evidence in the proceedings. (c) the nature and gravity of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding, (d) the availability of any other evidence concerning matters to which the protected confidence or protected identity information relates, (e) the likely effect of adducing evidence of the protected confidence or protected identity information, including the likelihood of harm, and the nature and extent of the harm that would be caused to the protected confider, (f) the means (including any ancillary orders that may be made under section 126E) available to the court to limit the harm or extent of the harm that is likely to be caused if evidence of the protected confidence or the protected identity information is disclosed, (g) if the proceeding is a criminal proceeding - whether the party seeking to adduce evidence of the protected confidence or protected identity information is a defendant or the prosecutor, (h) whether the substance of the protected confidence or the protected identity information has already been disclosed by the protected confider or any other person, (i) the public interest in preserving the confidentiality of protected confidences. (j) the public interest in preserving the confidentiality of protected identity information.
4. It is apparent that section 126B is directed towards the question of the admissibility of evidence at trial. In the present case, the Court is not required to make a determination as to admissibility, but rather, the pretrial issue of whether the subpoena should be set aside or alternatively, that the court should not permit access to the subpoenaed material.
5. The provisions of Division 1A of Part 3.10 are extended, to some extent, to include pretrial processes of access by virtue of section 131A of the Act. Section 131A provides: (1) If- (a) a person is required by a disclosure requirement to give information, or to produce a document, which would result in the disclosure of a communication, a document or its contents or other information of a kind referred to in Division 1, 1A, 1C or 3, and (b) the person objects to giving that information or providing that document, the court must determine the objections by applying the provisions of this Part (other than section 123 and 128) with any necessary modifications as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence. (2) In this section, disclosure requirement means a process or order of a court that requires the disclosure of information or a document and includes the following - (a) a summons or subpoena to produce documents or give evidence.
6. Section 131A only applies where the person required to disclose a protected confidence makes an objection to such disclosure. The subpoena requires production of a protected confidence by the Medico Legal unit of Western NSW Local Health District. No objection has been raised by the Health District. The defendant is unable to rely on this provision.
7. What is apparent from the legislative scheme is that the test in section 126B is not strictly applicable to the issues of setting aside a subpoena or granting access to subpoenaed material.
8. In Jolley v DPP [2020] NSWSC 1406 Adams J set aside a decision of a Local Court Magistrate to refuse access to subpoenaed material based on the test in section 126B of the Evidence Act. Adams J held that the test in section 126B did not apply. Rather, the Court was to apply principles relevant to granting access to subpoenaed material.
9. The test in section 126B is relevant, but not determinative, of the issue.

Setting Aside Subpoena and Granting Access to Subpoenaed Material

1. The legal principles that are applicable to the matter presently before the Court are those relating to the setting aside of a subpoena and to the grant of access to subpoenaed material.
2. The fundamental consideration in relation to setting aside a subpoena is whether the subpoena is an abuse of process. In Botany Bay Instrumentation and Control Pty Ltd v Stewart [1984] 3 NSWLR 98; (Supreme Court (NSW), Powell J, 17 October 1984) at 100 Powell J listed a variety of instances in which subpoenas had been set aside. It includes circumstances where the subpoena has been issued for a purpose which is impermissible, as for example, a fishing expedition.
3. In Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 Brereton JA agreeing with Bell P stated in relation to the issue of setting aside a subpoena for production at [89]: "…the essential question is whether the documents called for are apparently relevant, or capable of providing a legitimate basis for cross-examination, in which case there is a legitimate forensic purpose for the issue of the subpoena."
4. In the present case, the submissions on behalf of the Director of Public Prosecutions identify Mr Haywood presenting himself to Lightning Ridge Police Station at approximately 9.30am on 12 February 2022 and police formed the view that he was suffering from a mental health episode. Mr Haywood is said to have made admissions to Police Officers to matters relevant to the charge. There appears to be a connection between the mental health episode and the matters relevant to the charge. Mr Haywood attended the Lightning Ridge Multi-Purpose Health Service that same day in response to his mental health episode.
5. It seems clear that the medical records would be apparently relevant to the state of mind of Mr Haywood in relation to the alleged criminal offence. The state of mind of Mr Haywood would be relevant to issues of mental element of intention for an offence under section 66EB(2) of the Crimes Act 1900. I am satisfied that there is a legitimate forensic purpose and there is no basis to set aside the subpoena.
6. The legal principles relating to the grant of access to subpoenaed material are contained in the judgment of Moffitt P in National Employers' Mutual General Insurance Association Limited v Waind & Hill [1978] 1 NSWLR 372; (Court of Appeal (NSW), 1 June 1978) at 384: "..the limitation upon the exercise of the judge's discretion to allow inspection is that the document contains information of apparent relevance to the issues. Once the judge has that opinion, inspection will normally be allowed, notwithstanding that the document is not admissible as it stands and notwithstanding that the party seeking inspection has not given any undertaking to tender it or use it in cross examination. The discretion is one concerning the invasion by the subpoena procedure of the rights of a stranger by the party who seeks inspection in aid of the presentation of his case to the court."
7. For the reasons indicated above there is "apparent relevance" or a legitimate forensic purpose which would normally lead to a direction allowing inspection of the material. The issue is whether the Court should exercise its discretion to refuse inspection based on considerations of the invasive nature of the subpoena. When exercising this discretion it is necessary to have regard to the legislative provisions of Division 1A of Part 3.10 of the Evidence Act and the nature of the documents produced.
8. In Urquhart v Lanham [2003] NSWSC 109 at [15] Campbell J made the following observations: "…it is not in a direct way that the existence of s 126B affects the way in which the Court should approach inspection of documents prior to a trial. However, in an indirect and more general way, it seems to me that it is a relevant matter. There is a policy concerning the protection of confidences which underlies s 126B, which requires matters favouring the protection of professional confidences, of the type defined in s 126A, to be taken into account in the exercise of discretions about what evidence should be admitted in a hearing. It seems to me that it is appropriate that that policy should also be taken into account in deciding the way in which inspection of confidential documents should occur before a hearing. If that did not happen, Parliament's evident intent in enacting s 126B could be undermined…"
9. While recognising the concern that inspection may have the potential of undermining the restrictions contained in s 126B it should be also recognised that if Parliament wished for the Court to apply s 126B to access to subpoenaed material it could have legislated for this through a more expansive provision in section 131A of the Act. It has not done so.
10. It also needs to be recognised that there are restrictions that apply to the granting of inspection of Court information. Where access is granted to documents produced under subpoena, access is subject to an implied undertaking to the court not to disclose them for any purpose other than in relation to the litigation: Moage Limited v Jagelman [2002] NSWSC 953 at [10]-[12]. In Blanch v Deputy Commissioner of Taxation [2004] NSWCA 461 Giles JA said at [14]: "The implied undertaking is an endeavour to balance the intrusion into privacy by the compulsory production of documents necessary to do justice, with maintenance of privacy otherwise'"
11. In considering in general terms whether a direction may be made that the protected confidence in the subpoenaed material be inadmissible the Court recognises that the parties, and therefore the Court, are not in a position to consider this question in any meaningful way prior to inspection. Issues such as the desirability of the evidence being adduced against the harm likely to be cause can only be addressed upon proper assessment of the material.
12. From the Courts own preliminary and general assessment it can only conclude that there is no certainty that a direction under section 126B would be made. Even if the Court considered that such a direction is likely, as demonstrated in Waind & Hill, even inadmissible documents may be subject to inspection.

Order 1. The Court grants general access to the material produced under subpoena. Magistrate S Olischlager Local Court of New South Wales

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 March 2023