MOK v NEW SOUTH WALES CRIME COMMISSION & ANOR

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40526/01

MASON P STEIN JA MATHEWS AJA

Thursday 7 March 2002 DANNY SUM MOK v NSW CRIME COMMISSION & ANOR JUDGMENT

1 MASON P: The claimant seeks leave to appeal against the order of Sully J refusing access to certain records held by prison medical authorities that were produced under subpoena by the second opponent. Access was refused on the ground of public interest immunity. 2 The Court heard full argument as on an appeal. 3 Pending in the Common Law Division are proceedings brought against the claimant by the New South Wales Crime Commission, the first opponent. The proceedings are brought under the Criminal Assets Recovery Act 1990 and concern the property of the claimant. That Act provides for the confiscation, without requiring a conviction, of property of a person if the Supreme Court finds it to be more probable than not that the person has engaged in "serious crime related activity" (as defined in s 6). 4 It is common ground that the substantive proceedings will turn essentially upon the evidence of a man named Cheung concerning the conduct which accompanied a conversation in Cantonese between him and the claimant on 21 January 1999. A substantial part of the conversation was recorded by a hidden listening device somewhere in the motor vehicle where the two men were seated. The recording does not, however establish beyond dispute the Commission's claim that a large sum of money was then and there passed to the claimant as the consideration for an illicit drug transaction. 5 Mr Cheung had been convicted of heroin importation and gaoled in 1991. He was released from prison in 1996 and became a registered informant for the National Crime Authority. He met the claimant in May 1998. In January 1999 Cheung was handed $84,000 by the police to effect a controlled purchase of heroin. It was this sum that was allegedly passed to the claimant before it went missing. 6 The interlocutory proceedings before Sully J arose out of a subpoena issued by the claimant to the second opponent, the Officer in Charge of the Department of Human Resources, Victoria. This is a department of the Victorian government that maintains prisoner medical files. It holds them separately from general prison files, which are under the responsibility of the Office of the Correctional Services Commissioner (Vic). 7 Relevantly, the subpoena called for production of: "Certain records pertaining to the medical history of a person named Frank YinKee Cheung between 01/01/91 and 31/12/97 inclusive."

8 The barrister representing the claimant informed his Honour that the material was sought to assist the claimant's defence "because he has been informed by an associate that whilst in prison Cheung sought treatment for psychiatric illnesses". 9 Sully J first heard and rejected an application to set aside the subpoena on the ground that it lacked a legitimate forensic purpose. The learned judge said: I do not see why in the case of the present kind it is not a legitimate forensic purpose to seek to test in every proper way the credibility and the essential reliability of Mr Cheung. If, as I apprehend to be the situation, there is no reliable alternative way of breaking what is shaping up as a deadlock between two irreconcilable points of view as to what was said, then it seems to me to be a legitimate forensic purpose to seek to have recourse to information of the kind now in question which is capable, as it would seem, of establishing that at some time anterior to the date of the conversation in 1999 Mr Cheung received treatment for some psychiatric illness. The nature of that illness and of its treatment being at least, ' on the cards' as capable of shedding sunlight on to his credibility as to what he says was said and intended in the relevant conversation held on 21 January. 10 This conclusion is not challenged in the appeal. 11 The party subpoened then objected to production on the basis of public interest immunity. An affidavit sworn by Ms Lorna Elizabeth Payne was read. It is presently material terms were: 1. I am the Acting Manager, Service Monitoring and Review, in the Aged, Community and Mental Health Division of the Department of Human Services ("the Department"). I have worked for the Department since 1994.

2. As part of my position, I am responsible for the Prisoner Health Care Unit, which reviews and monitors the provision of health services within the Victorian Private and Public Prison system. I advise the Office of the Correctional Services Commissioner on the monitoring of prisoner health and assist that Office in the development of policy and standards in relation to prisoner health. I make this affidavit from my own knowledge save where the contrary appears.

5. The Office of the Correctional Services Commissioner is responsible for all of the documentation listed except for prisoner medical files. Prisoner medical files are held by the Department. Prisoner medical files are maintained separately from prison files and while they remain the property of the Crown, they are in the possession and control of the Secretary to the Department.

Exhibited to me at the time of swearing this affidavit and marked exhibit "1" are documents described in paragraph 1 of the Schedule to the annexed subpoena marked "A". Objection is taken to production of exhibit 1 as production of such material would be against the public interest in ensuring that prisoners in the correctional system are able to discuss freely and frankly with health professionals such medical issues as confront them during their time in custody. The release of prisoners' medical files would undermined the trust of prisoners in the correctional system for health professionals. If prisoners were to understand that their medical files were to be disclosed without their consent they may be discouraged from seeking the assistance of health professionals in the correctional system.

The production of the file contained in exhibit 1 would inhibit the ability of providers of health services to effectively deliver health services to prisoners. It is a mandatory requirement, pursuant to section 19 of the Corrections Act 1986 that, as soon as possible after a prisoner's reception into prison, the prisoner must submit to medical tests and further the principal medical officer may direct a prisoner to submit to medical tests. The purpose of section 19 is to enable the principal medical officer to assess a prisoner's physical and mental health. It is a coercive procedure which exists for the benefit of the prisoner, the prison system and the general community.

Prisoners in Victoria have no access to health services other than those provided by the Department, unless they seek to have private services provided at their own expense. The provision of health services in the correctional system is made difficult by the reluctance of prisoners to make full and frank disclosure of information relating to their mental and physical well-being. This reluctance arises due to the suspicion on the part of prisoners that health service staff form part of the Correctional Services hierarchy.

It is a common occurrence that prisoners seek an assurance that medical and nursing staff are not in any way associated with correctional staff. A prison setting presents a more difficult environment in which to win, secure and maintain the trust and confidence of a prison patient.

Prisoners are not cautioned by medical or treating staff that any information that they provide to staff could later be used against them in Court.

It is important to maintain this confidentiality so that prisoners have complete faith in the confidentiality of matters raised in the course of their assessment and treatment. This allows them to disclose information and relevant background in respect of their mental and physical well-being. If it were known that interactions with treating staff could be disclosed in circumstances such as this case, it would seriously impair the delivery of health care services in the prison system because prisoners would feel reluctant to disclose information relevant to their treatment as it might be used in legal proceedings.

Preservation of the integrity of the treating process is vital in the public interest to ensure that prisoners have access to adequate health services.

Further, notes taken by staff are an "aide memoir" to assist in the ongoing treatment of prisoners and could be misleading when taken out of context. They contain a full background which is relevant for the medical treatment of the prisoner. If the notes were to be publicly accessible by others, staff would change their record keeping practices and this would impede the effective provision of health services within the prison setting.

For the following reasons, I believe that the information contained in the file should not be released on the following public interest grounds:

(a) There is a public interest in ensuring that prisoners are able to freely discuss health issues with health professionals;

(b) Release of such information will reduce the trust of prisoners in the health staff undertaking the provision of health services in the prison system.

Further details of the claim for public interest immunity may be provided if required by the Court.

12 Sully J upheld the claim of public interest immunity. His Honour posed two questions, each of which he answered adversely to the interest of the claimant: 1) whether the material subpoenaed was capable as a matter of law of being embraced in any event by "the principle of public interest immunity privilege" ; and 2) how the "practical balancing of interests" of the kind referred to in Alister v The Queen (1983) 154 CLR 404 was to be struck. 13 Doubtless responding to the way the case was argued before him, the learned judge said this (paragraph numbers added to assist future reference):

As to the first of those questions, it is I think sufficient to understand that the material in question is, essentially, material concerning the psychiatric condition of Mr Cheung at a time when he was in custody, and subject to coercive medical and psychiatric examination pursuant to s29 of the Corrections Act 1986 of the State of Victoria. All that needs to be understood for present purposes concerning the existence, the scope, and the practical consequences of the operation of that legislation will be found in an affidavit sworn on 7 June instant by Lorna Elizabeth Payne in support of the claim of public interest immunity privilege.

The claim is supported by reference in particular to a decision of Cummins J of the Supreme Court Victoria in Clifford v Victorian Institute of Forensic Medical Health and Anor (1999) VSC 359, unreported, 16 September 1999. Put very simply, the question that I have to decide is whether the reasoning in Clifford is displaced by the reasoning of the Court of Criminal Appeal of this State in Reg v Young (1999) 46 NSWLR 681. That decision was a decision of a specially convened bench of five Judges presided over by the Chief Justice.

If upon a proper analysis the reasoning that supports the decision in Young is inconsistent with the reasoning that supports the decision in Clifford , then I must prefer the decision of Young , by which I am of course bound.

Fundamental to the reasoning upon which the decision in Young rests is the concept that public interest immunity privilege exists in order to protect properly the public interest in the efficient functioning of the State and of its principal authorities and institutions. It is the maintenance of a proper confidentiality in aid of the efficient public administration that is, according to Young , the essential touchstone by which it is to be decided whether public interest immunity privilege should be extended in principle to any given activity having a public dimension about it.

If that is a correct understanding of the fundamental reasoning that supports the decision in Young , then it seems to me that such reasoning, so far from being inconsistent with the reasoning that supports the decision in Clifford , tends rather to be consistent with, and supportive of, the reasoning in Clifford . I do not see any reason of principle why public interest immunity privilege ought not to extend in a proper case to the protection of material obtained coercively from a person then in the custody of the State in accordance with the particular circumstances described by Miss Payne in her affidavit.

That conclusion then brings into play the second question to which I earlier referred. I have myself inspected what I apprehend to be the relevant parts of the material produced by the Department in answer to paragraph 1 of the schedule to the subpoena. I observe parenthetically that no material has been produced in answer to paragraph 2 of that schedule, and there is no present controversy deriving from that fact.

The material that has been produced by the Victorian Authorities undoubtedly contains within it material that bears upon the medical history generally, and the psychiatric history particularly, of Mr Cheung.

I have tried to take into account in a reasonable way whether the dating of that material is sufficiently proximate to the relevant occasion that what is said in the Departmental material continued to be applicable in 1999.

The dating of the material, it must be said, is not entirely clear; but I think that a reasonable inference is that it dates from 1994 or thereabouts. The principal psychiatric report does not appear to have been presented in any formal way until perhaps July of 1996; but, as I say, the matters with which it deals seem to be matters dating from, at the latest, July of 1994. Doing the best I can as I am at present advised, I have not been persuaded that any interest particular to the doing of justice in the present application has been shown to have about it such weight and force as would in my opinion be sufficient to displace what is otherwise a proper public interest to protect the confidentiality of material of the kind in question.

The ramifications of any curial decision that creates a precedent for the breaching of the confidentiality of medical and psychiatric material obtained coercively by an arm of the State, are such as to require, in my opinion, a clear and compelling preponderant countervailing interest to justify the breach of that confidentiality, and of that protecting immunity. In my opinion, therefore, the present claim for public interest immunity privilege has been made good, and it is upheld. 14 The Corrections Act 1986 (Vic) deals with prison administration in Victoria. For present purposes it is sufficient to observe that the Act recognises a number of prisoner's rights (s47) including:

(f) the right to have access to reasonable medical care and treatment necessary for the preservation of health including, with the approval of the principal medical officer but at the prisoner's own expense, a private registered medical practitioner physiotherapist or chiropractor chosen by the prisoner;

(g) if intellectually disabled or mentally ill, the right to have reasonable access within the prison or, with the Governor's approval outside a prison to such special care and treatment as the medical officer considers necessary or desirable in the circumstances;

(h) the right to have access to reasonable dental treatment necessary for the preservation of dental health;

… 15 Section 29 provides: Medical tests and samples

(1) As soon as possible after a prisoner's reception into a prison the prisoner must submit to medical tests.

(2) At any time after a prisoner's reception into a prison the principal medical officer may direct the prisoner to submit to medical tests.

(3) In this section "medical tests" means any - (a) medical examinations: and (b) tests (including the taking of samples of breath, blood and other bodily secretions) to assess a person's physical and mental health -

(4) In determining medical tests which prisoners must undergo the principal medical officer must have regard to the safety and welfare of the other prisoners in the prison. 16 In Clifford v Victorian Institute of Forensic Mental Health [1999] VSC 359 a claim for public interest immunity had been raised in relation to a psychiatric hospital file believed to contain an admission made by a mentally ill accused person who had been detained in custody pending trial. The claim was supported by an affidavit that deposed that: Confidentiality is a cornerstone of the provision of mental health services within the prison system. The full and frank dialogue between practitioners and prisoner is essential to the provision of mental health services. Accordingly, it is important that prisoners have complete faith in confidentiality of matters raised during the course of psychiatric assessment and treatment. If a prisoner suspects that complete confidentiality does not exist, the legislation which requires that treatment be dispensed would be frustrated and therapeutic interaction between doctor and patient either hindered or negated. The deponent further deposed that: There is a greater need for a medical practitioner's ethical duties to be followed strictly in a prison context than may be the case outside the prison system given the vulnerable position in which a prisoner finds himself or herself. 17 Citing authoritative statements relating to public interest immunity generally, Cummins J upheld the claim for public interest immunity. His principal reasons were:

[25] The therapeutic and protective regime established by the Mental Health Act 1986 and related legislation exists for the benefit of both prisoner and community. Its effective operation should be preserved. It is significantly in the public interest that that be so.

[26] I am satisfied on the balancing exercise ( Alister & Ors v The Queen at 412), that whilst it was proper and in the public interest for investigating police to pursue the record of an apparent admission by the accused when no admission had been made to them by him, public interest immunity requires refusal of that pursuit. First, the accused was a prisoner in custody. Second, he had been charged with murder. Third, he had already been interviewed (twice) by the police. Fourth, he was not (normally) entitled to bail. Fifth, he was subject to coercive medical procedures. Sixth, he was not warned that he did not have to give a history or answers to the doctor (probably the contrary). Seventh, he was mentally ill and certified as such. The existence and confluence of those factors affirmatively requires the upholding of public interest immunity in this case, as the learned Chief Magistrate did. It is not necessary to its upholding that the condition of schizophrenia involves historical unreliability (see R v Stiles (1990) 50 ACrimR 13 at 22). Its upholding is the consequence of the affirmation of the protective and therapeutic regime for mentally ill persons coercively held by the State.

[30] Learned senior counsel for the plaintiff relied upon a number of authorities, in particular R v Young (1999) NSW CCA at 166. However in the present case there is clearly a governmental function by reason of the applicability of the relevant legislation; whereas in R v Young there was no governmental function. There is also ample evidence before me of the adverse effects of disclosure, unlike that which the Court of Appeal found in Young and as to which I make no comment. Further, unlike Young , here the accused was in custody. R v Lowe (1997) 2 VR 465 likewise is to be distinguished. In that case the statements were voluntary, made for collateral purpose, promoted by the accused for his own ends, not involving a governmental function, and not to a person in authority.

18 Young was a decision of the Court of Criminal Appeal of this State which held that the common law did not recognise a category of public interest immunity relating to sexual assault counseling. In so concluding, the Court (by majority) held that public interest immunity is concerned only with the conduct of governmental functions (see at 693 [57], 695 [65] per Spigelman CJ with whose reasons on this matter Abadee, James and Barr JJ agreed). It is not clear whether their Honours intended to confine this reference to the executive arm of government (cf per Spigelman CJ at [57]). Beazley JA dissented. 19 I must say, with the profoundest respect to their Honours in the majority, that I have difficulty in appreciating the basis for any such governmental function restriction. Nevertheless, I would be bound to follow this considered statement of principle in any case that arose concerning the common law of public interest immunity. This said, D v National Society for the Prevention of Cruelty to Children [1978] AC 170 demonstrates, at the very least, that the notion of governmental function is very broad in nature (see also the professional discipline cases cited in Young at 694-5). 20 I am, however, satisfied that the resolution of the present case does not turn upon the scope or application of Young. Young's exposition of the common law has no direct and little indirect impact upon the true issues in the present appeal. 21 Young concerned the common law of public interest immunity, because the substantive proceedings before the court were criminal, and because Division 1B of the Evidence Act 1995 (which had been invoked in support of the claim for public interest immunity) did not apply directly or derivatively to the production of documents on subpoena. By contrast, the substantive proceedings in the present case are civil (see Criminal Assets Recovery Act 1990, s5) and Part 36 r13 of the Supreme Court Rules incorporates by reference those parts of the Evidence Act which address issues of public interest immunity. 22 Young's indirect application consists in the caution expressed about recognizing new categories of immunity (see esp at 696-700) and its insistence upon cogent and specific supporting evidence (see at 702-3). 23 Part 3.10, Division 1A of the Evidence Act (ss126A-126F) is particularly relevant. It deals with professional confidential relationship privilege. Section 126B empowers a court to direct that evidence not be adduced in a proceeding if the court finds that adducing it would disclose a "protected confidence". The term is defined in s126A in language broad enough to include a communication made during the provision of medical treatment. 24 There is also the general exclusion of evidence of "matters of State" (broadly defined in a non-exclusive way) to be found in s130 of the Evidence Act. 25 It is unnecessary to explore the detailed scope of Division 1A which commenced operation on 1 January 1998. Nor, in light of the way this appeal was argued, is this appeal a suitable vehicle for exploring the relationship between the statutory privilege enacted therein, and the common law of public interest immunity. 26 In the present case none of these matters were drawn to the attention of the learned primary judge. The application was dealt with as though it concerned common law public interest immunity and nothing else. The evidence was similarly focused. In this Court, counsel responded as well as they were able when these matters were pointed out from the Bench; but the Court did not have the assistance of any considered submissions addressing the problems in this case through the primary lens of the relevant statutory materials. 27 The written submissions filed in the present application had effectively joined issue on the questions whether Young prevailed over Clifford and whether (if it did) there was nevertheless a sufficient "governmental" interest in safe and effective prison administration to remove any problem stemming from Young's conclusion that the common law was thus restricted. I have already indicated why these endeavours miss the point. 28 Counsel for the claimant informed the court that his submissions could be encapsulated in three broad propositions namely:

1. The documents in question do not fall within any class of public interest immunity, because no governmental interest is engaged ( Young );

2. If, in light of Clifford , there is a relevant category of public interest immunity, then it is only engaged if one is dealing with coerced medical examinations;

3. The particular documents do not attract public interest immunity on a proper balancing of any competing public interests. 29 I incline to the view that the common law of Australia would uphold a claim of public interest immunity in the factual situation addressed in Clifford, including (in particular) any clearly established situation involving compulsion to submit to medical tests under s29 of the Corrections Act 1986 Vic or any interstate counterpart. But Clifford involved a unique concatenation of facts (see par [26] of the extract from the judgment of Cummins J set out above) and the situation is (to me) much less clear once one moves away from them. 30 To the extent that the common law insists upon the presence of a governmental interest (NB Young), that interest is present in such a context because the medical and psychiatric assessment of a prisoner upon reception into the prison system is a vital step in proper prison administration. It goes well beyond the private interest of the prisoner. Likewise with medical tests directed by the principal medical officer. 31 But it is not nearly so clear in relation to the voluntary, ongoing medical treatment of a serving prisoner or to the result of a psychiatric assessment initiated by the prisoner for his or her own purposes. The affidavit that grounded the decision in Clifford and the affidavit read in the present application show a tenable basis for a public interest in confidentiality, but it is far from clear that such interest outweighs the public interest in getting at the truth in litigation. Medical confidences involving non-incarcerated patients do not form a class of public interest immunity (see Young at 699 [89]) and it is difficult to see why the patient's status as a prisoner should alter this in the general run of cases. 32 There may be particular situations where such a claim would be attracted, but it is not clear why it should be attracted in relation to every or even most aspects of prison medical treatment. It is easy to conceive of situations where the public interest in upholding the claim is so tenuous as to be non-existent (for example, criminal proceedings against an assailant who assaulted a fellow prisoner). Young explains the caution that should attend the discovery of new categories of public interest immunity. 33 It is unnecessary to pursue these matters further because the primary focus of the present inquiry should have been ss126A-126F of the Evidence Act (professional confidential relationship privilege) in the first instance and s130 (exclusion of evidence of matters of State) in the second. The matter should be remitted to enable this to be done in circumstances where the evidence and arguments address the true issues. The former prisoner, Mr Cheung, may have a legal interest in the resolution of the privilege issue, although I express no concluded view on this. Mr Cheung may possibly have waived his rights in any event. 34 Sully J appears to have concluded that the whole of the prison medical file related to material obtained coercively from the prisoner Cheung (see pars 1, 5 and 10 of the extract set out in par 13 above). Indeed, it is debatable whether any of the file meets such a description. The affidavit of Ms Payne falls considerably short of the specificity grounding a claim for immunity to which Spigelman CJ adverts in Young at 702-3. The opponent properly concedes that the affidavit does not establish that any part of the file fell within s29. 35 My examination of the relevant file (which the Court was invited to peruse, without objection from the claimant) indicates that it cannot be characterized in this manner, at least in its totality. The file goes well beyond material obtained in the course of "medical tests" upon reception or pursuant to the direction of the principal medical officer within s29 of the Corrections Act 1986. The material of particular interest to the claimant would appear, on its face, to relate to psychiatric assessment sought on the prisoner's initiative for a particular purpose. 36 I am not to be taken to have concluded that s29 is the only possible basis for public interest immunity in cases such as the present (if such immunity exists). It is however clear that any wider basis for immunity and/or privilege has not been properly addressed in the evidence or submissions. In these circumstances it is unproductive to consider the outer reaches of any privilege or immunity. 37 The order upholding public interest immunity at common law should be set aside and the proceedings remitted for further hearing in the Common Law Division. 38 It will be open to both sides to supplement the evidence in the further hearing. 39 I propose the following orders:

3. Set aside the order of Sully J upholding a claim of public interest immunity at common law in relation to the documents produced in answer to the subject subpoena.

4. Remit further proceedings in relation to the subpoenaed documents to the Common Law Division.

6. The Registrar of the Court of Appeal is to return the original and copies of the subpoenaed documents to the proper officer having custody of exhibits in the Common Law Division. 40 STEIN JA: I agree with Mason P. 41 MATHEWS AJA: I agree with the orders proposed by Mason P and with his reasons therefore.

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.