Marwan v Director of Public Prosecutions

Court of Criminal Appeal (NSW)|2019-07-11|Before: Leeming JA, Hulme J, Adamson J

Judgment

LEEMING JA: Mr Mirco Marwan has been charged with one count of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW). On Friday 5 July 2019, the primary judge delivered lengthy oral reasons following a hearing which extended over the previous two days dismissing Mr Marwan's motion for a temporary stay of the trial. Mr Marwan has sought leave to appeal, pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW) from that order.
An order dismissing an application for a temporary stay falls within the scope of the appeal against interlocutory judgments and orders conferred by s 5F(3). Leave is required because the primary judge did not certify that the order was a proper one for determination on appeal pursuant to s 5F(3)(b). The Court heard the matter on Thursday 11 July 2019, two days after the transcript of the reasons became available, in light of the trial commencing on the following Monday 15 July. The Court was assisted by the written and oral submissions of counsel, especially those of the Crown, who had not appeared below.
These are my reasons for participating in the Court's orders, shortly after the conclusion of oral submissions, granting leave to appeal but dismissing the appeal.

Factual background

On 9 November 2017, the complainant was a young woman aged 18 who was visiting Sydney on a holiday from her home in the United Kingdom. She attended a Sydney nightclub with some friends and her half-brother. There she met the applicant, a German national, whom she had never met before. There is no dispute that the two engaged in some consensual sexual activity in a laneway in the vicinity of the nightclub in the early hours of 10 November. There is also no dispute that penile-vaginal intercourse took place in the laneway. The Crown case is that after the initial consensual sexual activity, the complainant refused consent. There was immediate complaint by her to her friends, and the complainant was taken to hospital and a Sexual Assault Investigation Kit examination was performed, from which DNA samples were obtained whose profile matched that of the applicant.
The applicant was interviewed at a police station some 11 days thereafter, and accepted that there had been sexual activity between him and complainant on the evening. According to him, at some stage the complainant did say "stop", and he stopped immediately.
Submissions in this Court proceeded on the basis that the principal issues at trial would be whether the complainant withdrew her initial consent, and whether the accused reasonably understood her to have done so.

The evidence supporting the application for a temporary stay

For the limited purposes of this application, only two aspects of the Crown case need be summarised.
The complainant was taken to hospital by an ambulance. The ambulance officer recorded on a form at the time: "PHs ANXIETY, DEPRESSION-OFF MEDICATION FOR 4/12 SINCE → AUSTRALIA."
Two other aspects of the form may be noted. The first is that the ambulance officer recorded that the complainant was "SITTING ON FOOTPATH, ALERT + ORIENTED CALM GIVING STATEMENT TO POLICE". Evidently, police were at the scene before the ambulance arrived. Ambulance records suggest that the ambulance arrived some 20 minutes after being called. The second is that the form notes "~5 STANDARD DRINKS THROUGHOUT NIGHT".
The officer had prepared a statement in the Crown case some seven months later. The officer stated she had refreshed her memory from the notes, and that she "can't remember specific details of the conversation". The statement included: "My assessment included a general check of her including conscious level and blood pressure. I also obtained details of her medical history which I noted down that she had a history of depression and anxiety and she had not taken her medication recently."
It will be a matter for the trial, but it may be that the officer had a limited independent recollection of the events of 10 November 2017.
Also included in the Crown brief was a statement taken from the complainant's half-brother. He described walking with the complainant and her friends on the street after the incident as follows: "We walked to the corner of Martin Place and George Street, we had to stop walking because we could see that the girls had stopped. The complainant was sobbing and [a friend] was comforting her. We sat down on the steps of a nearby building to give them a bit of space. … The complainant was getting visibly more upset, and crying more, I would describe it as similar to having panic attack."
The notice of motion filed in the District Court on 20 June 2019 sought the following substantive order: "That the proceedings be temporarily stayed pending proper disclosure of the following matters: a. The United Kingdom criminal record of the Complainant; b. The United Kingdom mental health records of the Complainant."
However, no submissions were made in this Court based on the complainant's criminal record. That followed from the fact that during or immediately after the hearing before the primary judge, the complainant had consented to her criminal record being made available to the Australian prosecution authorities. The applicant accepted that he was recently informed that the complainant had no criminal antecedents.
It was accepted that following a request for mental health records, seemingly first made on 22 May 2019, many months after service of the Crown brief, a decision was made by the Crown not to ask the complainant for those records, or for permission to request them, and not otherwise to attempt to seek them from UK authorities. Evidence was adduced by the Director (aspects of which were criticised by the applicant) that such a request, if made, would fall outside certain "guidelines" developed by the Commonwealth Attorney-General for international mutual assistance in such matters.
Accordingly, the issues in this Court were narrower than those at first instance. It is unnecessary to summarise the entirety of the reasons of the primary judge, and it will be more convenient to summarise the portions which were criticised on appeal when dealing with the applicant's submissions.

The applicant's submissions in this Court

Central to the applicant's submissions was the proposition that this was a case where the Crown's duty of disclosure extended to making inquiries about the matters recorded by the ambulance officer and supported by the complainant's half-brother. The applicant's submissions were directed to the likely forensic advantages of obtaining documents disclosing more details of what underlay her reported earlier history of anxiety and depression, and what underlay the statement attributed to her that she had been "off medication" for four months since travelling to Australia. It was said that such information might throw light upon the evidence in the Crown case that the complainant appeared to be suffering from a "panic attack", so as to provide an alternative explanation for her apparent state of distress after the alleged non-consensual sexual intercourse. It was submitted that "the very loss of opportunity to explore these issues, to make properly informed forensic decisions about them, to properly cross examine the complainant on the issues, those matters themselves are sufficient to introduce unfairness into the trial process."
The applicant was critical of what was said to have been an unduly narrow approach taken by the primary judge, much of whose reasons was directed to the likely inadmissibility of any documents obtained, insofar as they might be the subject of sexual assault privilege, or too peripheral to be relevant. This was said to amount to applying the wrong test and predetermining the application. The applicant submitted, contrary to parts of the reasons of the primary judge, that there was plainly a legitimate forensic purpose in the complainant's mental health records.
Other aspects of her Honour's reasons were to the effect that the records would not materially advance the defence. This too was said to be addressing the wrong question.

Consideration

The application involves a number of novel features. No authority was relied on in support of a duty to make inquiries with third parties where a temporary stay had in fact been granted pending those inquiries being carried out. Nor did the parties direct the Court to a case where the nature of those inquiries involved (a) information located overseas or (b) sensitive personal information such as mental health records. Further, while it was common ground that "in an appropriate case" the "duty of disclosure" extended to a positive obligation to make inquiries, that formulation in a real sense begs the question: is the present an "appropriate case"?
What follows addresses the issues arising in this appeal under the following headings: 1. The formulation of the test to be applied when seeking a temporary stay. 2. The legal nature of the duty of disclosure. 3. The alleged obligation to investigate - factual difficulties. 4. The alleged obligation to investigate - absence of authority. 5. Difficulties confronting acceptance of an obligation to investigate. 6. Improper inferences drawn by the primary judge? 7. Wrong question asked by the primary judge? 8. No duty to make any further inquiries in the present case.

The formulation of the test to be applied when seeking a temporary stay

There is arguably some divergence in the authorities which formulate the test to be applied in such a case.
On the one hand, the applicant relied upon the formulation of principle in R v Seller; R v McCarthy (2015) 89 NSWLR 155; [2015] NSWCCA 76 at [128], and applied in Leiper v R [2018] NSWCCA 117 at [42]: "The question of whether a temporary stay should be imposed arises if the Court is of the view that it is inappropriate to grant a permanent stay but, notwithstanding, some relief is necessary to ensure a fair trial."
On the other hand, the Crown relied upon a potentially lower threshold, namely, whether there was "a tangible risk that the trial would be unfair", which was treated in Gould v Director of Public Prosecutions (Cth) [2018] NSWCCA 109; 359 ALR 142 as being a lower standard. That seems to derive from Re K [2002] NSWCCA 374 at [9]-[10]. This was the formulation employed by the primary judge.
However, in Gould v Director of Public Prosecutions (Cth) at [63]-[64], Basten JA (with the agreement of Johnson and Adamson JJ) applied a test formulated by reference to whether it had been shown that "the trial is likely to be unfair": at [63]-[64], using language drawn from Dietrich v The Queen (1992) 177 CLR 292 at 311; [1992] HCA 57.
No submissions were made as to whether these were merely verbal differences, or went to the substance of the test. It is quite possible that there is no material difference between them, although Gould suggests that the "tangible risk" formulation is a lower standard which is more readily satisfied. However, it is neither necessary nor appropriate to resolve that question in this urgent appeal. The applicant made no submission that the primary judge had applied the wrong test. It is preferable to proceed on the basis, favourable to the applicant, and as propounded by the Crown and adopted by the primary judge, that it is sufficient for him to establish a tangible risk that the trial would be unfair if it proceeded without the disclosure of the United Kingdom mental health records as sought by him.

The legal nature of the duty of disclosure

The "duty of disclosure" owed by prosecuting authorities is a relatively recent creation. That was the point made by Osborn, Whelan and Priest AJJ in Eastman v Director of Public Prosecutions (No 13) [2016] ACTCA 65 at [330]: "The common law did not always recognise that the accused had a right to - and the prosecution had a duty to provide - disclosure". The duty is now well-established, although the foundational cases are quite recent. The review by Kirby J in Mallard v The Queen (2005) 224 CLR 125; [2005] HCA 68 at [64]-[80] records no decision which is more than 50 years old. The first recognition in New South Wales at the appellate level appears to have been by Hodgson JA in R v Reardon (No 2) (2004) 60 NSWLR 454; [2004] NSWCCA 197 at [46]-[54], who expressed the view at [54] that the principles stated in two English decisions, R v Keane [1994] 1 WLR 746 and R v Brown (Winston) [1998] AC 367, should be taken as applying in New South Wales. Hodgson JA said of those two decisions: "In R v Keane [1994] 2 All ER 478, the Court of Appeal held that, subject to the question of public interest, the prosecution must disclose documents which are material; and it said that documents are material if they can be seen, on a sensible appraisal by the prosecution, (a) to be relevant or possibly relevant to an issue in the case, (b) to raise or possibly raise a new issue the existence of which is not apparent from the prosecution case, or (c) to hold out a real (as opposed to a fanciful) prospect of providing a lead on evidence going to either (a) or (b). This view was approved by the House of Lords in R v Brown (Winston) [1998] AC 367 at 376-7, with the comment that 'an issue in the case' must be given a broad interpretation. Category (c) makes it clear that the duty is not limited to matters that would be admissible in evidence. However, in Brown it was also held that the duty did not extend to disclosing material relevant only to the credibility of defence (as opposed to prosecution) witnesses."
His Honour's statement was obiter, and was not joined by the other members of the Court. However, it was endorsed in this Court shortly afterwards, in R v Spiteri (2004) 61 NSWLR 369; [2004] NSWCCA 321 at [20].
It is also to be borne in mind that the so-called "duty" is unusual. So too is what may loosely be described as the "right" of the accused to disclosure (both illustrate the way in which legal usage commonly departs from Hohfeldian exactness). For it is quite plain that the "duty" to disclose is not owed directly to an accused, so as to enforce the production of documents as might occur in civil litigation through discovery and interrogatories, or pursuant to freedom of information legislation. To the contrary, an accused person cannot ordinarily obtain an order that the prosecution disclose documents which have been withheld. Rather, the accused is entitled to a fair trial, and can insist that the trial be stayed, permanently or temporarily, if it can be established that that will not occur, absent adherence by the prosecution to that duty.
The position is analogous with what was established by Dietrich v The Queen as to legal representation. There is no right to the provision of counsel at public expense. Rather, there is a right to a fair trial (more precisely, a right not to be tried unfairly: see Strickland v Commonwealth Director of Public Prosecutions [2018] HCA 53; 93 ALJR 1 at [202] and Dietrich at 299). Where a person is charged with a serious offence, an indigent person who cannot obtain legal representation may apply for a stay.
Further, the "duty" must accommodate itself with statute. The applicant pointed to two statutes. Rules 87 and 88 of the Legal Profession Uniform Conduct (Barristers) Rules 2015, which are delegated legislation, provide: "87. A prosecutor must disclose to the opponent as soon as practicable all material (including the names of and means of finding prospective witnesses in connection with such material) available to the prosecutor or of which the prosecutor becomes aware which could constitute evidence relevant to the guilt or innocence of the accused other than material subject to statutory immunity, unless the prosecutor believes on reasonable grounds that such disclosure, or full disclosure, would seriously threaten the integrity of the administration of justice in those proceedings or the safety of any person. 88. A prosecutor who has decided not to disclose material to the opponent under rule 87 must consider whether: (a) the charge against the accused to which the material is relevant should be withdrawn, and (b) the accused should be faced only with a lesser charge to which such material would not be so relevant."
Rules 89 and 90 (to which the applicant also referred) deal with calling witnesses and are not presently relevant.
It will be seen that r 88 confirms the nature of the entitlement of the accused, which turns on the fairness of the trial, rather than a directly enforceable right to receive material. It will also be seen that nothing in r 88 supports a positive obligation to investigate so as to obtain further information.
Secondly, there is "Guideline 18" issued by the Director to prosecutors pursuant to s 14 of the Director of Public Prosecutions Act 1986 (NSW), which is headed "Disclosure" and which was tendered before the primary judge. It relevantly provides: "Prosecutors are under a continuing obligation to make full disclosure to the accused in a timely manner of all material known to the prosecutor which can be seen on a sensible appraisal by the prosecution: to be relevant or possibly relevant to an issue in the case; to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use; and/or to hold out a real as opposed to fanciful prospect of providing a lead to evidence which goes to either of the previous two situations. The prosecution duty of disclosure does not extend to disclosing material: relevant only to the credibility of defence (as distinct from prosecution) witnesses; relevant only to the credibility of the accused person; relevant only because it might deter an accused person from giving false evidence or raising an issue of fact which might be shown to be false; or of which it is aware concerning the accused's own conduct to prevent an accused from creating a trap for himself or herself, if at the time the prosecution became aware of that material it was not seen as relevant to an issue in the case or otherwise disclosable pursuant to the criteria above. In all matters prosecuted by the Director, police, in addition to providing the brief of evidence, must notify the Director of the existence of, and where requested disclose, all other documentation, material and other information, including that concerning any proposed witness, which documentation, material or other information might be of relevance to either the prosecution or the defence in relation to the matter and must certify that the Director has been notified of all such documentation, material and other information. (Procedures are in place for such certification to occur.) Subject to public interest immunity considerations, such material, if assessed as relevant in the way described above, should be disclosed and, where practicable, made available, to the defence."
Plainly enough, parts of the language of that guideline are drawn from the English decisions which were stated in Reardon (No 2) to be part of the law in New South Wales.
Once again, the formulation of that guideline provides no support for a positive obligation to obtain further material. (Indeed the document also includes the statement "Regard should be had to the protection of the privacy of victims", although in its context that may be regarded primarily as directed to the residential addresses and telephone numbers of victims.)
Guideline 18 is not itself legislation. Section 15(2) provides that persons to whom a guideline is furnished are "subject to" the guideline. It is not necessary to analyse precisely what rights and obligations (if any) are thereby created. I respectfully agree with Simpson J's analysis in a dissenting judgment, but from which an appeal was allowed, in R v Grey [2000] NSWCCA 46; 111 A Crim R 314 at [32]: "Of course, guidelines cannot be treated as prescriptive in the same sense as a statute might prescribe procedures, non compliance with which might have specific legal consequences. The DPP guidelines are precisely what they are called - guidelines. They are designed to ensure the fair conduct of criminal prosecutions. They do not create any enforceable right in any individual. But they do provide a useful touchstone, both of what fairness requires, and of what an accused person might expect by way of disclosure from those involved in the prosecution."
Thus the "right" of the accused invoked in the present case turns upon the risk of unfairness of the trial. The applicant must establish that the duty of disclosure extends to a duty to make further inquiries in the present case, and further that only if that occurs and the results of those inquiries are disclosed to the applicant will the risk of unfairness of the trial be avoided. As much was anticipated in Basten JA's reasons in Gould at [63]: "The underlying basis of the motion was not the duty of disclosure, but the availability of the power of the criminal court to stay a prosecution in order to prevent an unfair trial."
It is one thing for the prosecutor (in the present case, extending to both the Director of Public Prosecutions and the police) to be required to disclose, or to consider disclosing, information already possessed (such as a criminal record). It is another thing entirely for the "duty" to impose an obligation to take further steps to gain inherently confidential information not presently known by the prosecution.

The alleged obligation to investigate - factual difficulties

Central to the applicant's submission was the proposition that the duty of disclosure included, in the facts of this case, an obligation to investigate or make inquiries. Let it be assumed the asserted obligation existed as a matter of law on the facts of the present case. It nonetheless remained necessary for the applicant to identify the inquiries that might be made, and what might result from them, as part of his application for a temporary stay.
In the present case, there was no evidence of what form any mental health records held in the United Kingdom might take. The applicant adduced no evidence as to how such records might be obtained, or how long that process would take. There was evidence that, if sought through diplomatic channels, such records would be difficult to obtain and would take many months. (The applicant was critical of that evidence, in light of the fact that the same had been said in relation to obtaining the complainant's criminal records. However, the criminal records seem to have been obtained through police, rather than diplomatic channels. Nothing turns on this.) As will be seen below, these factual gaps in what was being sought are problematic.
There is a further problem arising from the evidentiary vacuum in which the motion has been brought. The applicant's notice of motion sought a stay pending "proper" disclosure of the United Kingdom health records. That was formulated, so this Court was told, in order to avoid the difficulties which had occurred in R v Lipton (2011) 82 NSWLR 123; [2011] NSWCCA 247 (see at [35]) and as noted in Gould at [61]-[63]. But so formulated there are further difficulties. Suppose such an order was made. When would the stay be lifted? What amounted to "proper" disclosure? As was remarked during the hearing, I would not order a conditional stay which was apt to give rise to a dispute as to whether the condition had been satisfied.
Suppose the complainant declined to permit the defence team to have access to her mental health records, an attitude which the applicant accepted would accord with her right to privacy in equity and under United Kingdom statute. Would merely making a request which was declined amount to giving "proper" disclosure? The applicant's main submission, when pressed, was that in that case, further inquiries should be made at the governmental level. There is no evidence that there would be any prospect of, say, the UK National Health Service, if it retained any records, releasing them to Australian authorities without the consent of the complainant. If in fact there is no realistic possibility of that occurring, would the temporary stay sought by the applicant become by default a permanent stay?
Considerations such as these led to the applicant formulating a fall-back position as follows: "[I]f the court takes the view that because there is no evidence before the court that there would be utility in the prosecutor pursuing an inquiry with the United Kingdom authorities, then at the very least the order should grant a stay pending the prosecutor approaching the complainant and requesting that she provide consent or an authority to obtain her mental health records from the United Kingdom authorities and, secondly, that the investigator seek to obtain a statement from the complainant addressing her mental health issues or addressing the matters in respect of which disclosure is sought, that is, diagnosis, symptomatology, medication taken and the severity of the illness. There would be no bar to the investigator seeking to obtain a statement from the complainant in relation to these matters, no practical bar. I say seeking to obtain a statement, because of course it would be the complainant's right to refuse to provide a statement, but in that event that may provide a basis for cross examination at the trial, the very refusal to provide a statement on such matters."

The alleged obligation to investigate - absence of authority

There is very little authority in support of the proposition that a prosecutor must do more and make inquiries with a view to obtaining information not presently in the prosecutor's possession.
True it is, as the applicant submitted, that it was said in R v Lipton at [81] that: "The obligation to disclose includes, in an appropriate case, an obligation to make enquiries: AJ v R [2011] VSCA 215 (at [22]) per Weinberg and Bongiorno JJA (Buchanan JA agreeing)."
That statement was obiter, concerned an issue which did not arise in that case, and was unelaborated. One member of the Court agreed, generally; the other expressly distanced himself from it. The Victorian decision cited, AJ v R (2011) 32 VR 614; [2011] VSCA 215 is of the same character. I mean no criticism, but neither decision provides any assistance as to what is an "appropriate case".
The main example in the authorities of the duty extending to investigation or making inquiries concerns the disclosure of criminal convictions. Thus in R v Garofalo [1999] 2 VR 625; [1998] VSCA 145 at [70] a rule was formulated that the Crown was to disclose the convictions of all proposed witnesses in trials on presentment or indictment whose credibility might be in issue, if proof of such convictions might reasonably be seen as capable of affecting the witness's credibility. Such statements are of limited assistance here, where what is asserted is a duty to make inquiries concerning prima facie confidential information not in the possession of the prosecuting authorities.
Further, the portions of the judgment in Garofalo immediately preceding and immediately following the formulation of the rule tend to point to the absence of the duty extending to a case such as the present.
The immediately following sentence in Ormiston JA's judgment was: "It is irrelevant that counsel or instructing solicitor or any other person directly engaged in the prosecution of the particular charge is unaware of any relevant conviction, for it is for the prosecution to make the necessary enquiries on computer or otherwise, although it could not be suggested that their obligations go further."
Contrary to that sentence, the applicant asserts that the Crown must go further and must make inquiry of either or both the complainant and some authorities in the United Kingdom about the complainant's mental health diagnosis and treatment.
The preceding paragraph in Garofalo records a submission based on privacy: "It was said that the provision of the witness's record might infringe the witness's privacy. Again a resolution of this question is presently unnecessary but for the most part it would seem unlikely to arise in an inordinate number of cases, nor were any specific examples given to suggest the contrary."
It will be seen that the issues of confidentiality and privacy and autonomy which loom large in the present application were not developed in Garofalo, for the understandable reason that a witness's criminal record is entirely different from a witness's medical history.

Difficulties confronting acceptance with an obligation to investigate

The applicant's posited obligation to investigate and disclose the results of the investigation raises large issues, as the Director correctly submitted. These include the following.
First, the equitable and statutory obligations of confidentiality applicable to those records all tend against an obligation of disclosure extending to such information. It seems clear that the content of any obligation upon prosecuting authorities to seek production of such information must have regard to the rights of persons to withhold such information.
Secondly, the time and cost of undertaking the investigation. It is one thing to make an inquiry into a computerised database to obtain the criminal record of a witness. It is another thing entirely to seek to obtain the mental health records of a witness from another agency (or indeed another country), and to keep those prima facie confidential and sensitive records secure throughout the criminal process. It is to be recalled that if those investigating and prosecuting crime are obliged to carry out positive investigations of the nature posited by the applicant, then that obligation will extend not merely to this case, but to the multitudes of comparable cases. Further, it is to be borne firmly in mind that: "The expenditure of public funds of the State ... is not within the province of the judiciary; it is within the exclusive control of the legislature": Commissioner of State Revenue v ACN 005 057 349 Pty Ltd (2017) 261 CLR 509; [2017] HCA 6 at [8]
Thirdly, there is the privacy and autonomy of the witness. In the context of negating a duty upon an employer to make such an inquiry, emphasis has been given to the important values of autonomy and dignity and privacy which are involved: see especially the two decisions mentioned during the hearing, Hegarty v Queensland Ambulance Service [2007] QCA 366 at [45]-[46] and State of New South Wales v Briggs (2016) 95 NSWLR 467; [2016] NSWCA 344 at [124]-[131]. They were cases where the employees were engaged in work the nature of which was such as to predispose them to suffering mental illness. A criminal prosecution is very different from a civil duty of care, but as presently advised I see no reason why such values would not be accorded respect. An example of this may be seen in the very limited access given to such records in LAL v The Queen [2011] VSCA 111 especially at [82]: "Viewed overall, I do not think that the troubled upbringing of the complainant and the mental state that might be thought to be the result of her experiences was liable to detract from the strength of her testimony. In short, I do not consider that any of the information contained in the subpoenaed documents could significantly affect the reliability of the complainant's evidence. The probative value of the information in the documents subpoenaed from the health authorities hardly outweighed the public interest in the confidentiality of the communications and the harm likely to be caused to the complainant if the material were publicised and she were questioned about it. In my opinion, the applicant was not entitled to adduce evidence of the matters contained in the documents of the health authorities." That said, every case turns on its own facts.
Fourthly, there is the risk that the mere making of the inquiry may discourage certain complainants - possibly, some of the most vulnerable complainants - from reporting criminal conduct. Quite elaborate protection has been enacted in Chapter 6, Part 5, Division 2 of the Criminal Procedure Act 1986 (NSW) which is headed "Sexual assault communications privilege" to prevent documents and communications which are similar to those sought by the applicant as an aspect of the duty of disclosure. As the Director submitted: "whilst the matters in the Criminal Procedure Act may not apply directly as a matter of law because this material is not being sought by a subpoena power, the way those provisions operate and the serious policy considerations underlying them are relevant considerations in determining to what extent the Crown would go further than what is properly regarded by the Director as within his disclosure obligations."
The risk of fairness to the trial must be assessed in light of the balance struck by legislation, including in Division 2 of Part 5, as to material which is not ordinarily to be made available to the defence.
However, in the circumstances of this appeal, it will not be necessary to analyse these principles any further.

Improper inferences drawn by the primary judge?

The applicant identified four critical conclusions in the dispositive reasoning of the primary judge, each of which was said to disclose error. They were the following passages, found at pp 42-44 of the reasons: 1. "There is no evidence before me about the effect that such conditions [scil, anxiety and depression] would have on a witness's perception of events, her behaviour or her ability to recall." 2. "The described conditions were, in light of the nature of those conditions, significantly removed in time, that is in relation to an 18 year old woman, regarding medication ceased four months earlier than the events in question, such that the records may not even be said to meet the 'legitimate forensic purpose' test." 3. "It is also apparent that the complainant, who had previously sought medical attention for her symptoms, had not again sought that relief. I infer from the notes that she was symptom free from that time and while on holiday in Australia." 4. "A well-qualified doctor examined her soon after the alleged events in question and I can safely infer that had she presented with any symptomology that might give rise to relevant cross-examination, that would have been noted in the detailed sexual assault examination, been produced to the Crown and been disclosed. There is an absence of such evidence, and that is significant."
In relation to the second point, I did not understand the primary judge to be expressing more than a tentative view. It is to be borne in mind that the test to be applied is not one of setting aside a subpoena for want of a legitimate forensic purpose, but staying a pending prosecution because of unfairness.
The third and fourth points were criticised by the applicant, insofar as they disclosed a process of inferential reasoning. The first point was also said to amount to an impermissible inference, insofar as the applicant had failed to establish that the complainant's condition was relevant. I reject these submissions.
It is to be borne in mind that this was not a judge-alone trial where the primary judge made findings adverse to the accused without evidence. This was an application brought by the accused to prevent the regular processes of the criminal law from determining his innocence or guilt of the charge laid. The onus lay on the applicant. It was for him to establish the requisite risk of an unfair trial in the event that the stay was not granted. Insofar as his application sought to establish the prospect of unfairness by reference to what would be denied to him at trial, it was for him to establish the factual foundation for the submission.

Wrong question asked by primary judge?

Insofar as aspects of the reasoning of the primary judge amounted to a consideration of the possibility of any documents being tendered at the trial, the fact that a document might not be admissible does not of itself stand in the way of its being disclosed to the defence. Further, there is force in the applicant's point that it is difficult to assess in advance of the trial and without knowing what the documents are how they may come to be deployed and what tests they must satisfy in order to be admissible. It is also difficult to assess their value to the defence case in the abstract, without knowing what they might say.
However, notwithstanding the force of those criticisms, it remained the case that those aspects of the reasons of the primary judge are to be viewed in light of her Honour's correct conclusion that the "touchstone" ultimately was fairness to the accused, not admissibility. Her Honour's conclusion was expressed at pp 44-45 of the reasons thus: "The touchstone is fairness and the test is whether the applicant has established that the absence of the evidence means that there is a tangible risk that his trial will be unfair. I am not satisfied that there is a reasonable possibility that the documents requested will materially assist the applicant's defence. In my view the applicant did not establish any real likelihood that the trial would be unfair, absent either consideration by the Crown of, or disclosure to the applicant of, the material."

No duty to make any further inquiry in the present case

The applicant pointed to no authority where the duty of disclosure had been held to extend to further inquiries to seek to obtain mental health records of a complainant. I am not aware of any such decision.
The most recent appellate decision appears to be Eastman, where the ACT Court of Appeal reviewed the Australian and English authorities at [328]-[344]. Their Honours concluded, insofar as is presently relevant putting to one side the disclosure of convictions of Crown witnesses: "Putting prior convictions to one side, however, it seems to us that common law rules generally are concerned with the disclosure of material which has been gathered by police and the prosecution in the course of the investigation process. During that process, material will have been ascertained which may strengthen or weaken the case sought to be made by the prosecution. Fairness dictates that the prosecution must disclose to the defence any information in its possession which may assist the defence, either by undermining the Crown case or by providing exculpatory material. An aspect of that duty requires the prosecution to inquire into information which may affect the credibility of potential Crown witnesses, if there is sound reason to suspect that material exists which might impinge upon credibility or reliability. And again, fairness requires that material gleaned from those inquiries which may cast doubt on the credibility or reliability of those witnesses whose credit is investigated must be disclosed to the defence. That said, the prosecution is under no duty to investigate speculative or tenuous suspicion. To adopt the words of King CJ, the obligation to investigate only arises 'if the information is sufficiently solid to cause reasonable persons conducting the prosecution to think that cross-examination based upon it might elicit answers materially affecting the credibility of the witness'." [emphasis added].
The reference to King CJ's language is to what his Honour said in The Queen v K (1991) 161 LSJS 135 at 140, as to the absence of a requirement to disclose "every speculative and scurrilous rumour which may have come to the ears of investigating officers concerning a witness".
I could accept that if the mental health of a complainant or a key Crown witness were of central importance to the case, and that it could be said that a reasonable prosecuting authority would make inquiries about that, then there could be a foundation for the obligation to disclose to extend to making such inquiries, lest the trial be unfair. Suppose an important identification witness saw the accused at the scene, but in fact suffered from a mental illness which caused the witness to see things which were not there. That of itself is not sufficient to engage an obligation to make further inquiries; there is no occasion to inquire as to the mental health of every identification witness. However, if the material already known was such as to provide a "sound reason" for considering that mental illness might well be the reason for the testimony, such that any reasonable prosecutor would make further inquiries about that mental illness, then one might readily accept that this was an "appropriate case" for a duty to make inquiries.
In the present case, there are two pieces of evidence upon which the applicant relies: a statement by a lay witness that the complainant was reacting like a "panic attack", and the record of the history given by the complainant to the ambulance officer. The lay witness's reference to a "panic attack" is to be assessed by reference to the observations recorded by the ambulance officer a few minutes later.
Those aspects of the Crown case do not, to my mind, come close to giving rise to a "sound reason" (to use the language of Eastman reproduced above) to suspect that the complainant's mental health history impinged upon her credibility or reliability. Her statement that she had, four months previously, taken medication which had been prescribed for anxiety and/or depression, did not make it necessary or appropriate for the police or the Director to make any further inquiry.
The fact that the complainant had been diagnosed with anxiety and depression was disclosed. The fact that she had not been taking medication for four months prior to the alleged sexual assault was disclosed. The defence was able, if it so chose, to deploy that information in the course of the trial. Crucially to my way of seeing things, there is nothing unfair. The defence has the same information available to it as the prosecution, and there can be no suggestion of any unreasonable attempt to refrain from inquiries.
That information does not raise the sort of issue which would require the police or the Director of Public Prosecutions acting reasonably to take further steps to investigate what underlay the notes made by the ambulance officer, lest there be a tangible risk that the trial would be unfair. I fail to see how any diagnosis of anxiety or depression in the United Kingdom, or the fact that she had not been taking medication for the previous four months, bears upon her credibility or reliability in the facts of this case, where the complaint was immediate and the fact of sexual intercourse conceded.
The applicant maintained that this application was different, insofar as it was not possible for him to issue a subpoena to obtain records from the United Kingdom. I do not think that that is a relevant difference. The mental health records of the complainant are far removed from the issues in this trial.
Thus, assuming favourably to the applicant that there is a duty of disclosure extending to making further inquiries, it does not extend to the facts of this case. The dispositive portion of the reasons of the primary judge was to substantially the same effect.
For those reasons, I participated in the orders made by the Court at the conclusion of the hearing.
R A HULME J: I agreed with the orders made on 11 July 2019 granting leave to apply but dismissing the appeal. I agree with the reasons provided by Leeming JA.
ADAMSON J: I have had the benefit of reading the reasons of Leeming JA in draft. I joined in the orders made by the Court at the conclusion of the hearing. I would prefer not to express a view about the several matters covered by his Honour's reasons. It is sufficient to say that I am not satisfied that the Director of Public Prosecutions (the Director) had any duty to take steps to obtain the mental health or other medical records of the complainant or to obtain a statement from her as to her prior medical history relevant to her mental health. If the Director had made such enquiries and had such documents in his possession he would have been bound to disclose them. However, there was no duty to make such enquiries. I am not persuaded that any error has been shown in the decision of the Court below to refuse the stay.

Amendments 29 July 2019 - [8] - arrow inserted between "SINCE" and "AUSTRALIA". 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: 29 July 2019

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