In the matter of an application by McInnes [2009] ACTSC 29 (30 March 2009)

3. In general terms, the applicant is seeking to have certain counselling records relating to the complainant available for possible use in his trial.

4. The Evidence (Miscellaneous Provisions) Act 1991 of the ACT (the Miscellaneous Provisions Act) establishes a scheme to protect counselling records for victims of sexual offences, while permitting those records to be disclosed in court proceedings where appropriate and with specified safeguards.

5. The provisions of ss 58, 59, 60, 61 and 62 of the Miscellaneous Provisions Act are set out in the Appendix to this judgment. The scheme established by those sections applies to "protected confidences", defined in subs 55(1) of the Miscellaneous Provisions Act as counselling communications "made by, to or about a person against whom a sexual offence was, or is alleged to have been, committed". "Counselling communications" relevantly include communications:

_... made in circumstances that give rise to a reasonable expectation of confidentiality or a duty of confidentiality - _

(a) by the counselled person to a counsellor for the purpose, or in the course, of the counselling relationship between the counselled person and the counsellor; or

(b) to or about the counselled person by the counsellor for the purpose, or in the course, of the counselling relationship between the counselled person and the counsellor;

6. In short, the legislative scheme for protecting records of "protected confidences" is as follows:

• Except with the leave of the court, evidence of protected confidences cannot be obtained for the purposes of, or disclosed in, a criminal proceeding, and is not admissible in a criminal proceeding (s 58).

• Leave may be sought by application under s 59 and must be refused if the court is not satisfied that the applicant has a legitimate forensic purpose for seeking the leave (s 60). The court must decide the question of legitimate forensic purpose before it examines the protected confidences material (subs 60(3)).

• If a legitimate forensic purpose is established, the court must then examine the protected confidences material. For the purpose of that preliminary examination, the court may require the document to be produced and require certain people to give written or oral evidence to the court (s 61).

• Under subs 61(5), that preliminary examination must be made in the absence of the public and any jury, and must also be made in the absence of the parties and their lawyers except to the extent otherwise decided by the court.

• A record is to be made of the preliminary examination, but that record is not to be made available for public access (subs 61(7).

• Having examined the protected confidence material, the court must then decide the application for leave, having regard among other things to various criteria set out in s 62.

Application for leave for disclosure of certain records

7. The application in relation to documents recording a protected confidence covered by s 58 of the Miscellaneous Provisions Act was lodged on 31 July 2008 and came before me initially on 19 August 2008.

8. The documents concerned were notes made by the North Queensland Combined Women's Services (the Service) of counselling sessions undertaken in September 2006 by the complainant in the criminal proceedings against the applicant.

Opportunity for counselling service to make submissions

9. The original application took the form of an application made under s 59 for leave to issue a subpoena for the production of the documents concerned, and then leave to inspect those documents. The application to issue a subpoena was not opposed by the Director of Public Prosecutions (DPP), and on 19 August 2008 I noted that the applicant would serve on the Service the subpoena concerned, together with a copy of the application for leave (including its supporting material) and a covering explanatory letter. I was concerned to ensure that the Service, as well as the DPP and indirectly the complainant, had the opportunity to be heard on the question whether the Service's counselling records should be made available to the applicant, having regard to the possible precedent value of granting such leave.

10. The matter came before me again on 22 October 2008. By then, the Service had twice provided copies of the documents to the Court, and had indicated in writing that it did not object to making the records available and did not wish to be heard on the application.

11. At the hearing on 22 October 2008 I considered whether there was a legitimate forensic purpose for the applicant seeking leave to inspect the records. Counsel for the DPP indicated that he did not wish to make submissions on the "legitimate forensic purpose" test.

12. The applicant's submissions on the "legitimate forensic purpose" test were to the following effect.

13. The counselling sessions the subject of the material sought began in mid-September 2006. From around that time, the complainant had spent some time discussing the general subject matter of the alleged acts of indecency with her cousins, one of whom had made complaints of similar acts against the applicant.

14. The complainant's complaints of acts of indecency in early 1987 were made to police in November 2006 or possibly later (there is some lack of clarity in the material attached to the application).

(a) that the complainant's current recollection of the events of 1987 (when the acts of indecency were alleged to have occurred) may have been tainted by the discussions with her cousins; and

(b) that the records may be relevant to establishing the nature and details of the complainant's recollection of the alleged offences as it existed before the discussions with her cousins.

16. In my view, this provided a legitimate forensic purpose for seeking leave to inspect the counselling records, and I decided that I was not obliged by subs 60(1) to refuse the leave sought.

17. As a result of finding that there was a legitimate forensic purpose for the application, I was required by s 61 to make a preliminary examination of the material sought.

18. The material sought had already been provided by the Service, and I did not need to require anyone to provide written answers or to attend for oral examination on behalf of the Service. Nor did I make an order under par 61(5)(b) permitting either the parties or their lawyers to be present for the examination.

19. The preliminary examination was conducted in my chambers at 1:30 pm on 22 October 2008. A record of that examination has been made and is on the court file, but under subs 61(7) it will not be available for public access.

Should leave be given for disclosure of protected confidence?

20. Subsection 62(3) requires that, for the purpose of making a decision under subs 62(1) whether to give leave for the disclosure of the protected confidence, I must have regard to a number of matters, as set out below.

21. I assume, without great confidence and without being aware of any relevant authority, that the subs 62(1) decision is to be made having regard, among other things, to what I found on inspecting the material, but without disclosing any details of that material. This is an unusual approach, presumably justified as a matter of policy by the aim of narrowing the disclosure of protected confidences as far as possible, in particular by not disclosing any elements of the confidences if they are not to be available in a criminal proceeding and by confining the form of the disclosure if they are to be available.

22. As to the absence of any relevant authority as mentioned in [21] above, I note that a number of Australian jurisdictions now have legislative schemes along the lines of Division 4.5 of the Miscellaneous Provisions Act, but there appear to be few reported cases relating to such schemes. R v Young [1999] NSWCCA 166 (7 July 1999) and Atlas v DPP [2001] VSC 209; (2001) 3 VR 211 both relate to earlier versions of the legislative scheme, and were decided on the basis of particular provisions that differ in relevant respects from those in the current ACT legislation; I have not identified any judicial consideration of the current ACT scheme or any scheme in another jurisdiction that is relevantly similar.

23. On the basis set out in [21] above, I now consider the application for disclosure of the confidence by reference to the criteria set out in subs 62(3).

Is disclosure necessary for the accused person's defence? (par 62(3)(a))

24. In this case, as explained above, the protected confidence may be relevant to the reliability of the complainant's recollection of the alleged offences. Since this case will turn almost entirely on the complainant's evidence of events more than 20 years ago, the reliability of that evidence may well need to be challenged by the applicant in defending the charge.

Public interest in effective counselling etc for victims (par 62(3)(b))

25. The Miscellaneous Provisions Act provides for the protection of confidences made in counselling, subject to rigorous processes under which release may be permitted. Nothing was put to me suggesting that the current circumstances, which include the fact that neither the complainant nor the counselling service opposes release of the material, are such that the release of this material might have any negative effect on the provision of effective counselling to other victims of sexual offences.

Might disclosure of protected confidences dissuade victims from, or diminish value of, counselling etc? (par 62(3)(c))

26. In this case, at least, par 62(3)(c) seems to raise similar issues to those raised by par 62(3)(b). Permitting the disclosure of a confidence where that disclosure is not objected to by either the person being counselled or the organisation providing the counselling need not affect the attitudes of either counsellors or victims of sexual offences to any greater degree than they might already be affected by the mere existence of legislation permitting the release of this information in specified circumstances, however confined.

Probative value of evidence, and availability of other relevant evidence (par 62(3)(d))

27. The direct probative value of the counselling records will be negligible. However, the contribution of those records to addressing any argument that the direct evidence reflects recollections that have been in some way created as a result of discussions with other family members may, depending on evidence as to the dates of those discussions, be significant to the probative value of the complainant's own evidence.

Likelihood that disclosure will affect outcome of case (par 62(3)(e))

28. For the reasons mentioned in [24] above, the disclosure of the protected confidence may have some effect on the outcome of the case although, in the absence of detailed evidence about the dates of the family discussions, it is not immediately clear what outcome would be more likely because of the disclosure.

Whether disclosure is sought on the basis of a discriminatory belief or bias (par 62(3)(f))

29. Nothing put before me suggests any basis on which I could say that there is any discriminatory belief or bias underlying the request for disclosure in this case.

Does the maker or recipient of the confidence object to disclosure? (par 62(3)(g))

30. Counsel for the DPP advised that the complainant does not object to the release of the protected confidence. As already mentioned (at [10] above), the recipient of the confidence (the Service) does not wish to be heard on this application for leave to use the material in the criminal proceeding.

Expectation of confidentiality or potential prejudice to privacy, including having regard to passage of time or other event (par 62(3)(h))

31. There is nothing in the protected confidences as recorded that goes beyond the matters that would in any case be canvassed in a trial of the allegations as made. I note in this context that although more than 20 years have passed since the alleged acts of indecency are alleged to have happened, and although the death of the complainant's grandmother, who was also related to the applicant, apparently removed one reason for the complainant's earlier reluctance to tell her story, neither of these matters is relevant to the legislative provision, which only refers to the passage of time, or specific events, since the protected confidence was made (rather than since the alleged incident the subject of the complaint).

32. I am satisfied that, in the circumstances of this case, the public interest in ensuring that the applicant in this proceeding is given a fair trial outweighs the public interest in preserving the confidentiality of the material concerned. In reaching that conclusion, I rely on:

(a) the grounds on which I accepted that the applicant had a legitimate forensic purpose in seeking leave for the disclosure (see [15] above);

(b) the examination mentioned at [19] above;

(c) my findings as set out at [24] to [31] above; and

(d) an inference, from the Service's response, that the Service did not consider that a decision to give leave for the disclosure of the records to the applicant in this case would pose any threat to its ability to provide useful counselling either to the complainant in this case or more broadly to those who seek its help.

33. Accordingly, I grant leave under s 62 for the protected confidence material to be disclosed in and for the purposes of the applicant's trial on two charges of committing acts of indecency as mentioned at [1] above.

34. I note that this is not a decision about the admissibility as such of the material in the trial, only a decision that Division 4.5 of the Miscellaneous Provisions Act does not prevent its disclosure in, or for the purposes of, the current criminal proceedings against the applicant. In the absence of such leave the material would not be admissible in evidence at the trial (see par 58(3)(b) of the Miscellaneous Provisions Act), but the grant of leave does not mean that the material will necessarily be admissible or admitted.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

Solicitor for the Crown: ACT Director of Public Prosecutions

Appendix - Evidence (Miscellaneous Provisions) Act 1991 (ACT)

(1) This section applies in relation to a criminal proceeding.

(2) A protected confidence must not be disclosed in, or for the purposes of, the criminal proceeding unless the court dealing with the proceeding gives leave for the disclosure.

(a) a person cannot be required (whether by subpoena, application, notice or any other procedure), in or in relation to the criminal proceeding, to produce a document recording a protected confidence, unless the court gives leave; and

(b) protected confidence evidence is not admissible in the criminal proceeding, unless the court gives leave.

A person could not be required to disclose a protected confidence in response to a request for production of documents in a criminal proceeding unless the court gives leave.

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

1. Application for leave to disclose protected confidence

(c) set out the applicant's arguments in support of the application (including the matters mentioned in section 60 (2) (Threshold test--legitimate forensic purpose)).

(a) set out briefly the nature of the protected confidence evidence (if known); and

(b) set out, or be accompanied by a copy of, any relevant documents.

1. Threshold test--legitimate forensic purpose

(1) The court must refuse the leave sought under section 59 if not satisfied that the applicant has established a legitimate forensic purpose for seeking the leave.

(2) To establish a legitimate forensic purpose, the applicant must -

(a) identify a legitimate forensic purpose for seeking the leave; and

(b) satisfy the court that there is an arguable case that the evidence in relation to which the leave is sought would materially assist the applicant in his or her case in the proceeding.

(3) The court must decide whether or not to refuse the application under this section before it conducts a preliminary examination of the protected confidence evidence under section 61.

1. Preliminary examination of protected confidence evidence

(1) If the court is satisfied that the applicant has established a legitimate forensic purpose for seeking the leave, the court must then conduct a preliminary examination of the protected confidence evidence to decide whether leave should be given.

(2) For the preliminary examination, the court may--

(a) require anyone who has custody or control of a document recording a protected confidence to produce the document to the court for inspection; or

(b) require the counsellor concerned or, if the counsellor provides counselling on behalf of an entity, the principal or another representative of the entity--

(i) to give the court written answers to any questions; or

(3) The court must not order a person to attend for oral examination under subsection (2) (b) (ii) unless the oral examination of the person is necessary for the effective conduct of the preliminary examination.

(4) Only a person mentioned in subsection (2) may be ordered to answer questions or be examined under this section.

(5) The preliminary examination must be conducted--

(a) in the absence of the public and the jury (if any); and

(b) in the absence of the parties to the criminal proceeding and their lawyers, except to the extent otherwise decided by the court.

(6) Evidence taken at the preliminary examination must not be disclosed to the parties or their lawyers, except to the extent otherwise decided by the court or an appellate court under section 62 (6).

(7) A record of the preliminary examination must be made, but must not be made available for public access.

1. Giving of leave to disclose protected confidence

(1) After conducting the preliminary examination of the protected confidence evidence, the court may give leave for the disclosure of the protected confidence only if satisfied that, in the circumstances of the case, the public interest in ensuring an accused person in the criminal proceeding is given a fair trial outweighs the public interest in preserving the confidentiality of the protected confidence.

(2) To remove any doubt, if the court is satisfied under subsection (1) about part of a document only, it may give leave in relation to that part and refuse leave for the rest of the document.

(3) In making a decision under subsection (1), the court must have regard to -

(a) the extent to which disclosure of the protected confidence is necessary for an accused person to make a full defence; and

(b) the public interest in ensuring that victims of sexual offences receive effective counselling or other treatment; and

(c) the extent to which disclosure of protected confidences may dissuade victims of sexual offences from seeking counselling or other treatment or diminish the value of counselling or other treatment; and

(d) whether the evidence will have a substantial probative value to a fact in issue and whether other evidence of similar or greater probative value is available about the matters to which the evidence relates; and

(e) the likelihood that disclosure of the protected confidence will affect the outcome of the case; and

(f) whether disclosure of the protected confidence is sought on the basis of a discriminatory belief or bias; and

(g) whether the person to or by whom the protected confidence was made objects to the disclosure of the protected confidence; and

(h) the nature and extent of the reasonable expectation of confidentiality for the protected confidence and the potential prejudice to the privacy of anyone, including to the extent to which any interest in confidentiality or privacy has been lessened by the passage of time or the happening of any event since the protected confidence was made.

(4) Subsection (3) does not limit the matters to which the court may have regard.

(5) Leave under this section may be given subject to restrictions.

(6) If the court refuses to give leave, and an appeal is made against the refusal, or a ground of an appeal is the refusal, the appellate court may examine the evidence taken at the preliminary examination under section 61 (Preliminary examination of protected confidence evidence), and may make the orders about the disclosure of the evidence it considers appropriate.