Jolley v DPP

The Decision of Magistrate Giles

1. The court book I have been provided with shows that eight sets of submissions and a number of affidavits were provided to her Honour. Her Honour had before her an affidavit of the defendant setting out the forensic basis for seeking the subpoena. The applications were heard largely on the papers.
2. Her Honour reserved her judgment until 14 July 2020.
3. Her Honour delivered her reasons on 14 July 2020. These reasons dealt with all of the matters that were before her Honour but, given this appeal is only against a specified portion of her Honour's decision, it is agreed by the parties that only that portion of the reasons is relevant to my consideration today. Given that they only comprise six paragraphs, I propose to set them out in full: "Then we move to the four pages of handwritten notes by the psychologist that are also produced. Section 132 of the Evidence Act imposes a positive obligation on the Court if it appears a witness or a party may have grounds for making an objection and the Court has to satisfy itself that the party knows of that provision. When medical or psychological records are produced under subpoena, the producer usually points out such objection from their professional standpoint. Armchair Psychology did not for some reason, probably because of the innocuous nature of the narrative notes of two attendances in October 2019. The applicant defence lawyers in their written submissions state that Armchair Psychology did object but on my examination there was no note or letter to that effect with the documents. There can be no doubt that these handwritten notes of the defendant's narrative to the psychologist are a protected confidence under the Evidence Act. The test as to whether I should order that this evidence not be produced depends on whether I am satisfied that harm might be caused to the defendant who is the confider and that that harm outweighs the desirability of the evidence being given. That appears to be a positive burden on the applicant for the privilege and we must consider how important the evidence is, the nature and gravity of the subject of the charge which is quite serious, is there any other evidence of any of this evidence available, the nature and extent of the harm on disclosure and the ability to limit such harm if it is disclosed, has it been disclosed by anyone else already? The public interest in preserving such confidentiality. So of course under s 133 I took it upon myself to examine the documents. The notes are just a narrative where the defendant tells the psychologist about work, and what has been going on. I do not think they are very probative of anything really. The highest it gets is that she says she felt stressed at one point, sadder than usual at another point, overwhelmed at another. She tells the psychologist nothing more than was, from what I can gather, her original complaint to UTS and to the police about the stalking and threats made to her by someone or people unknown and the steps that UTS took to try to protect her safety. There is nothing personal or confidential that I could seek, nothing that has not already formed her original complaint of being targeted and threatened. There is nothing prejudicial, no inconsistent statements or admissions of any wrongdoing. There is also no diagnosis or treatment. It seems entirely consistent with what the original facts sheet alleged was her original complaint of the wrongdoing towards her by others. The document is really just consistent with what I am guessing the defence case is, that this stalking and threatening happened to the defendant and the original complaint by her to the police. It is not terribly probative of anything other than being a consistent statement. I am not satisfied it would cause harm or prejudice to the defendant, have any effect on the length of any trial or offend any public interest in preserving confidentiality. I am not convinced the objection to production on the basis of privilege is made out and I confirm the registrar's orders of access to both parties' legal representatives."

Nature of the Appeal

1. The summons specified that the relevant provision under which this appeal is brought is s 53(3)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) ("CARA"). Appeals from the Local Court to the Supreme Court are governed by Part 5 of the CARA. In particular, s 53 is relevantly in these terms: 53 Appeals requiring leave … (3) Any person against whom - (a) an order has been made by a Magistrate in relation to the person in any committal proceedings, or (b) an interlocutory order has been made by the Local Court in relation to the person in summary proceedings, may appeal to the Supreme Court against the order, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court.
2. Thus, the statutory prerequisites for this appeal to be brought are that: 1. Leave is required; 2. The order must be an "interlocutory order" made either by a Magistrate in committal proceedings or the Local Court in summary proceedings; 3. The ground must involve "a question of law alone".
3. Although this appeal was initially brought under s 53(3)(b) of the CARA (pertaining to summary proceedings), counsel for the DPP in her written submissions brought to the plaintiff's attention that the correct provision is in fact s 53(3)(a) of the CARA, given that the proceedings were committal proceedings and the matter is now in the District Court. Following that jurisdictional issue being raised, on 6 October 2020, an amended summons was filed stating that the appeal was brought under s 53(3)(a) of the CARA.
4. Dealing with the jurisdictional prerequisites for this appeal, the first question is: does this appeal concern a question of law alone?
5. Four grounds of appeal, as set out in the summons, are: 1. Magistrate Giles erred by finding that the test for whether or not the evidence be produced is whether or not the court is satisfied that harm might be caused to the defendant who is the confider and that that harm outweighs the desirability of the evidence being given (at T4.33-36); 2. Magistrate Giles erred by failing to correctly apply s 126B(1)(a) and s 126B(1)(b) of the Evidence Act 1995 NSW; 3. Magistrate Giles erred by failing to correctly apply s 126B(3) of the Evidence Act 1995 NSW; 4. Magistrate Giles erred by failing to correctly apply s 126B(4) of the Evidence Act 1995 NSW.
6. In the plaintiff's summons and written submissions, four" questions involved" are identified as follows: 1. Can the protected confidence (or documentation of a protected confidence) of the accused made to her treating psychologist be produced to the Prosecutor? 2. Does s 126B(1) provide a test that is separate to, and a preliminary step towards, s 126B(3)? 3. Did Magistrate Giles consider the harm that arises by an Accused person not having confidentiality with his/her healthcare provider? 4. Did Magistrate Giles give appropriate consideration to the matters set out in s 126B(4) of the Evidence Act 1995 NSW?
7. I am satisfied that although the first of these four questions involves a question of law alone, the remaining three do not. However, given the concession made by the Crown in this matter, I do not consider it necessary to consider those grounds. The relevant error identified is a failure to apply the correct test and I am satisfied that a failure to do so would be a question of law alone.
8. Turning to the question of whether this is an appeal against an interlocutory order, it is noted that that phrase "interlocutory order" is not defined in s 53(3) of the CARA. Despite this, it has been judicially considered on a number of occasions. The same statutory language is used in s 5F of the Criminal Appeal Act 1912 (NSW), and it has been held that the principles derived from decisions concerning that provision are applicable in the context of s 53(3) of CARA. I do not consider it necessary to set out all of those cases, but suffice it to say, the question has been considered in decisions of the Court of Criminal Appeal in R v Steffan (1993) 30 NSWLR 633, Salter v Director of Public Prosecutions (NSW) (2009) 75 NSWLR 392; [2009] NSWCA 357 and AF v R [2015] NSWCCA 35. I have previously summarised the relevant principles in these decisions in Russell v Scott & Anor [2017] NSWSC 1720 at [53]-[57].
9. In the written submissions filed on behalf of the Director it was accepted that this Court has proceeded on the basis that a decision by a Magistrate to set aside a subpoena or refuse access to subpoenaed material constitutes an interlocutory order: Fantakis v Local Court of New South Wales [2020] NSWSC 931, Franklin v Commissioner of Police and Anor [2018] NSWSC 310, Feeney v New South Wales Police [2016] NSWSC 1708 and Mackintosh v The Commissioner of Police (NSW) and Ors [2010] NSWSC 1064.
10. It was also acknowledged by counsel for the Director that this Court has proceeded on the basis that objections to the production of documents in answer to a subpoena fall within the scope of s 5F of the Criminal Appeal Act. These decisions include Director of Public Prosecutions (Cth) v Kinghorn; Kinghorn v Director of Public Prosecutions (Cth) (2020) 279 ALR 345; [2020] NSWCCA 48; Osborne v R (2014) 238 A Crim R 417; [2014] NSWCCA 17, Attorney-General v Lipton (2012) 224 A Crim R 177; [2012] NSWCCA 156, Attorney-General v Chidgey (2008) 182 A Crim R 536; [2008] NSWCCA 65 and Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667.
11. Although the Director acknowledged the distinction between a decision which requires a person to produce material in compliance with a subpoena and a decision which merely grants the parties access to inspect material that has already been produced, it was accepted that a decision granting access to inspect material does constitute a relevant order for the purpose of s 53 of CARA. As Rothman J observed in PPC v Stylianou [2018] NSWCCA 300 at [57]: "A direction that documents be produced or that access be given to documents produced is an order, and subject to the Criminal Appeal Act, may be the subject of appeal. Further, the order is interlocutory in nature."
12. For these reasons, I am satisfied that the Magistrate's order is one that is amenable to an application for leave to appeal under s 53. Given that the Crown concedes error which involves a question of law alone, it is also appropriate that leave be granted in this matter. I am also satisfied, on the basis of the procedural history I have already set out, that the interlocutory order pertained to a decision by a Magistrate in committal proceedings.

The Evidence Act

1. Before turning to provide my reasons for accepting the concession in this appeal, it is pertinent to first note the terms of s 126B of the Evidence Act. It is in these terms: (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 proceeding, (b) the importance of the evidence in the proceeding, (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 the 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 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. (5) The court must state its reasons for giving or refusing to give a direction under this section.
2. As the language of that provision makes clear, it is concerned with the "adducing" of evidence in a proceeding. Section 131A of the Evidence Act extends the application of s 126B in a limited respect. That provision is as follows: 131A Application of Part to preliminary proceedings of courts (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 objection by applying the provisions of this Part (other than sections 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, …

Consideration

1. The appeal brought by the plaintiff in this matter alleged error in the manner in which her Honour considered s 126B of the Evidence Act. The specific errors are those identified in the grounds of appeal in the amended summons. Despite the terms of s 131A of the Evidence Act, which extends the application of s 126B to a "party who objects to production", it was submitted on behalf of the plaintiff that she should be considered a producing party for the purposes of s 131A. Thus, although counsel for the plaintiff accepted the Crown's concession that error has been established, she nonetheless maintained that the relevant provision was s 126B of the Evidence Act rather than the common law.
2. The basis for adhering to this position is two-fold. First, on the plaintiff's instructions, there was objection to the production of the material by Armchair Psychology. Secondly, it was submitted that the law in this area is unclear, and there is sufficient ambiguity to suggest that s 126B of the Evidence Act is applicable on a factual basis such as this matter.
3. Turning to the first of these arguments, there is no evidence to support the argument that Ms Gordon did object to the material. She produced the material and access was granted. Had there been an objection on the file, a different process would have been followed. Secondly, the learned Magistrate made a finding in her reasons that there had been no objection.
4. The second basis of the plaintiff's argument was that it is unclear whether s 131A of the Evidence Act applies in a case such as this, given it is the plaintiff who wishes to object and she was not provided with notice that the subpoena would be issued. I have had regard to that submission and am unable to accept it. The reason I am unable to accept that the plaintiff could be considered a producing party is the clear statutory language of s 131A of the Evidence Act. The producing party was Ms Amanda Gordon and she made no objection to the notes being produced to the Local Court.
5. I have already extracted the reasons of the learned Magistrate above. It is clear that the language used by her Honour was to use a weighing test as set out in s 126B. Although it is somewhat unclear what the parties put to her Honour as to the applicable test, her Honour appears to have applied the s 126B test in relation to the aspect of the application before the Court today, but gone on later in her reasons to note the provision of s 131A and also the common law test in National Employers' Mutual General Insurance Association Ltd v Waind and Hill (1978) 1 NSWLR 372. Her Honour noted in that part of the reasons, which do not form any part of the appeal before me, that she had been advised of s 131A and the common law test in submissions before her on the application. Counsel appearing for the Director identified those submissions for the Court and it is not in fact clear where in them her Honour was advised of that.
6. As I have already indicated, both parties proceeded on the basis that I would not have regard to other portions of her Honour's reasons that did not concern this discrete argument. Although it is somewhat curious that her Honour applied the correct test elsewhere but not in relation to the aspect subject to argument, that fact does not bear upon the question of error in relation to the aspect of the application before the Court today. I say that with no disrespect to her Honour; she was dealing with a large number of submissions and applications at that time.
7. In circumstances where I am satisfied that s 126B of the Evidence Act did not apply to the application before her Honour, the test therefore was the common law test as set out in National Employers' Mutual General Association Limited v Waind and Hill. In particular, Moffitt P held (at 384-385) that: "If a subpoena for production is properly issued and not set aside, and, if there is ruled to be no valid objection to the production of the documents to the court, then the documents are in the control of the judge, who is invested with jurisdiction to take all steps necessary for the proper trial of the issues before him, subject to the due observance of any relevant rules and procedures of the court. So far as factual matters are concerned, the proper conduct of the litigation can only be that which fairly leads to the introduction of all such evidence as is material to the issues to be tried, and the testing of that evidence by the accepted procedures of the court. The only legitimate purpose of requiring the production, and permitting the inspection, of a stranger's documents can be to add, in the end, to the relevant evidence in the case… The crucial question in relation to the exercise of the discretion to permit inspection in the second step is whether the documents have apparent relevance to the issues. It is at the third step that questions between the parties of relevance in fact and admissibility are ruled upon. The judge is in some difficulty in determining whether documents are relevant prior to the presentation of the evidence or at the commencement of the case. If there is particular objection from the witness, or questions of privacy are involved, no doubt procedures can be adopted to ensure that only relevant documents are inspected. In other cases, it would appear appropriate to proceed to exercise the discretion, provided the documents are apparently relevant or are on the subject matter of the litigation. However, the limitation on the exercise of the judge's discretion to allow inspection is that the document contains information of apparent relevance to the issues…" (Emphasis added.)
8. As this judgment of his Honour makes clear, the crucial test in relation to the discretion whether to permit inspection is apparent relevance to the issues. I am satisfied that that is the appropriate test for seeking access at common law where it is submitted that access should not be granted based upon the material being a protected confidence.
9. Section 131A of the Evidence Act was not enacted until after 1995. Prior to its enactment, the court observed on a number of occasions that s 126B is of indirect relevance to the exercise of the court's discretion in determining whether to grant access to documents produced on subpoena at common law. Campbell J made observations to this effect Urquhart v Lanham [2003] NSWSC 109 at [15] as follows: "…it is not in a direct way that the existence of s126B 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 s126B, which requires matters favouring the protection of professional confidences, of the type defined in s126A, 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…"
10. Similarly, in Director-General, Dept of Community Services v D (2006) 66 NSWLR 582; [2006] NSWSC 827 at [17], Brereton J observed that: "At the outset, it is to be observed that s 126B is concerned with the adducing of evidence in a proceeding, and not with the granting of access to documents produced on subpoena. However, as it would defeat the purpose of s 126B to grant access to documents which record a protected confidence, I accept that the provisions of s 126B are relevant to the exercise of the court's discretion whether or not to grant access to documents produced on subpoena. It would generally be inappropriate to grant access to the documents in question, if the court were likely to make a s 126B direction at the hearing."
11. The concession made by the Crown in this matter was two-fold. It was conceded that her Honour should have applied the common law test but instead applied the statutory test. That is the first aspect of the concession. The second aspect of the concession is what her Honour actually found as to the relevance of the material produced.
12. I have already set out her Honour's reasons above. Her Honour noted that the notes were "not very probative of anything", and "not terribly probative of anything other than being a consistent statement", meaning consistent with what the plaintiff told police. As counsel for the Director pointed out in her submissions, the difficulty with this finding is: just because the notes are consistent with the plaintiff feeling sad and stressed does not mean they are not relevant when assessed in the context of the case overall.
13. To this extent it was conceded that her Honour did not apply the test of relevance as against all of the issues at trial. I have had regard to that submission. It was one properly made, and it is the second basis upon which I am satisfied that error is disclosed in this matter.
14. For these reasons, I am satisfied it is appropriate to make the orders sought today. Short minutes of order have been provided to the Court, and I propose to make those orders now.

ORDERS

1. Accordingly, I make the following orders: 1. Leave to appeal granted. 2. Appeal allowed. 3. Set aside Magistrate Giles' order made on 14 July 2020 granting access to notes produced by Amanda Gordon of Armchair Psychology in response to the subpoena issued by Detective Rawling and first returned on 8 January 2020. 4. No order as to costs. ***** 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: 14 October 2020