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[2013] NSWCCA 25
Court of Criminal Appeal (NSW)
2013-02-13
Hoeben JA, Adams J, Beech-Jones J, Mr P, Ms J
Original judgment source is linked above.
judgment 1HOEBEN JA: I agree with Beech-Jones J. I make no comment in relation to the observations of Adams J since for the reasons set out in [42]-[49] of the judgment of Beech-Jones J, the issue does not arise for consideration in this matter. With legislation of this complexity, I am not prepared to express an opinion based on hypothetical facts. 2ADAMS J: I have had the considerable advantage of reading the judgment of Beech-Jones J in draft. I agree with his Honour's reasoning and conclusions, but wish to make the following comments. 3Section 298 of the Criminal Procedure Act 1986 provides that compulsory processes requiring production of a protected confidence cannot be utilised except with the leave of the court. Section 299D provides that leave cannot be granted unless the protected confidence has "substantial probative value" (s 299D(1)(a)), other evidence "concerning the matters to which the protected confidence relates is not available" (s 299D(1)(b)) and the public interest in preserving the confidentiality of the communication is "substantially outweighed by the public interest in admitting" the material (s 299D(1)(c)). Whether these requirements are satisfied cannot of course be considered, let alone determined, by the court without inspection (except in the most unlikely case that the applicant - which might be either defence or prosecution - is already aware of the contents of the documents sought to be produced and is in a position to establish the requirements of s 299D(1), in which case it would seem that actual production of the documents is unnecessary). Inspection requires production. In the absence of leave, production, even voluntary production, is forbidden by s 298 subject, however, to the power of the court to make an order for production under s 299B. The envisaged procedure seems to be that notice of an application for leave is to be given under s 299C, which should seek an order for production under s 299B. The reason that the documents will almost without exception need to be produced is that, otherwise, it will be impossible for the court to determine the issues prescribed by s 299D. It seems that in this case no order was made and the production of the documents was sought (and made) pursuant to the subpoena, contrary to the Act. 4Speaking generally, it is obvious that the s 299D issues cannot be considered without examining the documents themselves or having sufficient information to make what might be called the statutory inquiries. The practical reality will almost invariably be that the documents have to be examined. That, indeed, was this case. Since reading the material was essential, the learned trial judge, in my respectful view, had a duty to do so, regardless whether or not it was requested. The application for access, which enlivened s 299D, of necessity implied a request to examine the material. (In my view, it should be inferred that his Honour did examine it.) I readily acknowledge that this places a heavy burden on trial judges but it is an inescapable consequence of the draconian terms in which the legislation is drafted. It might be appropriate for the Parliament to consider empowering the judge to give access to counsel for the Crown and defence to examine the material and make submissions (perhaps in writing to preserve confidence) on whether, and in what way, the s 299D tests are or are not satisfied. This would considerably simplify the judge's task. Such access could be subject to non-publication conditions, including a prohibition on disclosing the material to any other persons, including of course, either police or the accused. 5It was envisaged here that the subpoenaed material contained protected confidences. It was also expected that they would deal with the complainant's psychiatric state both before and after the alleged offence. To perhaps oversimplify somewhat, the applicant sought, and failed - at least at the very early stage at which the matter was argued - to show that this was or was likely to be relevant to the issues in the trial. The sexual incident alleged by the complainant is denied by the applicant and, on the face of it, it is difficult to see what relevance (let alone substantial probative value) the psychological material might have. However, it is plain that the complainant's credit will very much be in issue and it might be that that material contains information which reflects on her credit. Certainly, the extensive use of prohibited drugs is associated with other criminal behaviour undertaken to support what is usually an expensive habit and might well be relevant to credit. Furthermore, on the complainant's own account, her description of what occurred changed significantly by way of adding further very serious assaults following what she described as a "mental crisis". This raises several significant issues, of which the most obvious is whether, in fact, she had such a crisis and, if so, its relationship to the further disclosure and, indeed, the earlier non-disclosure. Whether the material deals with these questions is unknown and, even if it did, it might not satisfy the statutory test. All these matters plainly enough required the judge to examine the material for himself. This was all the more necessary as neither the applicant nor the Crown had access to the material and the judge has the overriding duty of ensuring a fair trial. Furthermore, the relevance of the material is not confined to the approach of the Crown to the issues in the trial. If there were information that might substantially affect the credit of the complainant it might well satisfy the s 299D test. In the very nature of things, the applicant could not identify except in the most general terms what that material might be but it is obvious that anything that dealt with the circumstances of the alleged offence or any connected facts might well be disclosable. The mere fact that the Crown would not seek to lead it does not by any means end the matter. On the other hand, it must be stated, in all fairness, that this was not the way in which the matter was put to his Honour and it is not possible, as I think with respect, to conclude that his omission to deal with the application in this light was an error. 6It is self-evident that the fact that the defence case is that no assaults of any kind occurred cannot be regarded as some sort of admission concerning consent. It is an element of the offence that the sexual acts alleged were not consented to. That element, as with all the elements of the offence, is placed in issue by the plea of not guilty. It will be necessary, in due course, for the trial judge to direct the jury as to the onus on the Crown to prove the lack of consent beyond reasonable doubt and point to the evidence that goes to the issue. It is completely legitimate for the defence to argue that, even if the jury is satisfied that the sexual acts occurred, it would not be satisfied beyond reasonable doubt that the complainant did not consent to them and, for that purpose both to cross-examine the complainant and adduce evidence that went to that issue, including evidence that went to her credit (subject to the provisions of Part 3.7, Division 2 of the Evidence Act 1995). Undertaking such a course is, for obvious reasons, fraught with danger but it is one that the applicant is entitled to take. Accordingly, if there were protected material that reflected on this issue and it satisfied the s 299D tests, it should be disclosed even if, as it were, the principal defence is that the sexual incidents did not occur at all. I mention this because of the potential materiality of the previous abuse suffered by the complainant. Of course, this would bring into play the provisions of Part 3.10, Division 1B of the Evidence Act 1995. The possible relevance of some of the confidential material to the issue of consent was raised by the applicant in reference to the significance of the alleged earlier sexual abuse. For myself, I would accept that the judge did examine the material in respect of this submission but found, if there was a relevant confidence, it did not satisfy the s 299D tests. 7BEECH-JONES J: This is an application under s 5F(3) of the Criminal Appeal Act 1912 for leave to appeal against the refusal by the District Court to grant the applicant access to certain documents produced to the Court under subpoena. The District Court was not satisfied that the criteria for the grant of leave set out s 299D(1) of the Criminal Procedure Act was made out. 8On 26 April 2012 the applicant was arraigned in the District Court on an indictment containing four counts. One count accused him of indecent assault, contrary to s 61L of the Crimes Act 1900. The other three counts allege that he sexually assaulted his victim without her consent, contrary to s 61I of the Crimes Act. All of the offences are alleged to have taken place on 25 November 2010. 9After the applicant was arraigned he caused subpoenas to be issued to four named hospitals and the Department of Family and Community Services for all their records concerning the complainant ("PPC1"). He did not seek the leave of the Court to issue the subpoenas. It appears that material was produced in response. The applicant sought leave to access this material. His application was initially listed for 4 July 2012. The application was adjourned and ultimately heard and refused on 20 August 2012. He filed his application for leave to appeal that refusal in September 2012. 10The applicant's trial was listed for hearing on 8 October 2012. It was adjourned as a result of the making of this application. It has now been listed for 11 March 2013. 11Between the time this application was filed and the time it was heard, this Court published its judgment in KS v Veitch (No 2) [2012] NSWCCA 266. KS v Veitch (No 2) construed the provisions in issue on this application, namely those found within Chapter 6, Part 5, Division 2 of the Criminal Procedure Act. The Court in KS v Veitch (No 2) rejected a challenge to the constitutional validity of those provisions. The challenge to the constitutional validity of the provisions is renewed by some of the proposed grounds of appeal accompanying this application. 12Both the Director of Public Prosecutions and PPC1 were made respondents to the application for leave. They were both represented at the hearing. There was no issue raised as to whether the Director had standing to be a party to the application. The Attorney General of New South Wales also intervened to make submissions in respect of the proposed constitutional challenge.
Leave to appeal 13Before addressing the merits of the application it is necessary to note that there are a number of matters at the outset which militate against the grant of the application for leave to appeal. 14First, one of the principal reasons for subjecting appeals from interlocutory orders in criminal cases to a requirement to obtain leave is to prevent or minimise the fragmentation of the process of criminal justice (see R v Einfeld [2008] NSWCCA 215; 71 NSWLR 31 at [23] and the cases there cited). As I have stated one trial date has already been vacated due to this application and another trial date looms. 15Second, the refusal of his Honour to grant leave does not represent any final determination of the applicant's rights. In particular, as I will explain, it is open to the applicant to renew the application for access if an appropriate basis emerges. 16Third, if the application is refused and no further application for production or access is made the applicant's remedies will not be exhausted. If he is convicted and it emerges that he was wrongly denied access to materials on subpoena he maybe able to demonstrate a miscarriage of justice (see KS v Veitch [2012] NSWCCA 186 ("KS v Veitch (No 1)") at [42] per Beech-Jones J; and Alister v R (1983) 154 CLR 404). 17Generally, leave to appeal an interlocutory decision in a matter such as this should not readily be granted, unless an appropriate case is made out of an error of principle which is apt to cause an irregularity or injustice (see Queanbeyan City Council v Environment Protection Authority [2011] NSWCCA 108 at [25] per Whealey JA, with whom Hall and McCallum JJ agreed, citing R v Van Phu Huo (New South Wales Court of Criminal Appeal, 18 July 1994, unreported). 18In my view, and leaving aside the constitutional challenge, the critical question for this application is whether a sufficiently strong case has been shown that there was an error of principle on the part of his Honour which would warrant an interference with the continued prosecution of these proceedings in the District Court. In relation to those grounds that raise a constitutional challenge, I consider that the critical question is whether a sufficient basis is shown to warrant a reconsideration of the reasoning or outcome in KS v Veitch (No 2). 19To address these issues it is first necessary to refer to the statutory regime in Chapter 6, Part 5, Division 2 of the Criminal Procedure Act and his Honour's judgment before addressing the proposed grounds of appeal.
Sexual Assault Communications Privilege 20It is necessary to note the following features of the scheme of the sexual assault communications privilege established by Chapter 6, Part 5, Division 2 of the Criminal Procedure Act. 21First, there is the scope of the privilege itself. It applies to a "protected confidence" which is defined by s 296(1) as meaning a "counselling communication that is made, by, to or about a victim or alleged victim of a sexual assault offence." Subsections 296(2) to (5) provide: "296 What is a protected confidence? ... (2) A counselling communication is a protected confidence for the purposes of this Division even if it: (a) was made before the acts constituting the relevant sexual assault offence occurred or are alleged to have occurred, or (b) was not made in connection with a sexual assault offence or alleged sexual assault offence or any condition arising from a sexual assault offence or alleged sexual assault offence. (3) For the purposes of this section, a communication may be made in confidence even if it is made in the presence of a third party if the third party is present to facilitate communication or to otherwise further the counselling process. (4) In this section: counselling communication means a communication: (a) made in confidence by a person (the counselled person) to another person (the counsellor) who is counselling the person in relation to any harm the person may have suffered, or (b) made in confidence to or about the counselled person by the counsellor in the course of that counselling, or (c) made in confidence about the counselled person by a counsellor or a parent, carer or other supportive person who is present to facilitate communication between the counselled person and the counsellor or to otherwise further the counselling process, or (d) made in confidence by or to the counsellor, by or to another counsellor or by or to a person who is counselling, or has at any time counselled, the person. (5) For the purposes of this section, a person counsels another person if: (a) the person has undertaken training or study or has experience that is relevant to the process of counselling persons who have suffered harm, and (b) the person: (i) listens to and gives verbal or other support or encouragement to the other person, or (ii) advises, gives therapy to or treats the other person, whether or not for fee or reward." 22In KS v Veitch (No 2) at [16] to [18] Basten JA noted an apparent tension between ss 296(2) and (4) in that the former suggests an expansion of "the concept of a protected confidence to include counselling unrelated to the sexual assault offence the subject of the charge, or indeed any sexual assault offence" whereas the reference to "harm" in s 296(4)(a) and (5) appears to confine the concept to the harm suffered by the victim as a result of the alleged offence. In KS v Veitch (No 2) the Court determined the challenge to the constitutional validity of the provisions on the basis that the broader approach was appropriate, especially having regard to s 296(2). No different contention was made on behalf of the applicant in this matter. 23Second, s 298 provides: "298 Protected confidences - criminal proceedings (1) Except with the leave of the court, a person cannot seek to compel (whether by subpoena or any other procedure) any other person to produce a document recording a protected confidence in, or in connection with, any criminal proceedings. (2) Except with the leave of the court, a document recording a protected confidence cannot be produced in, or in connection with, any criminal proceedings. (3) Except with the leave of the court, evidence cannot be adduced in any criminal proceedings if it would disclose a protected confidence or the contents of a document recording a protected confidence." 24In KS v Veitch (No 2) at [23] Basten JA noted that the tripartite structure of this provision operates to prohibit the issue of a subpoena; the production of a document to the Court in answer to a subpoena; and the adducing of evidence recording or revealing a protected confidence except with a grant of leave. The applicant takes issue with one aspect of the Court's construction of s 298(2) in KS v Veitch (No 2). I will return to consider that matter. 25In both KS v Veitch (No 2) and this case, it appears that the subpoenas were issued without seeking the Court's leave, in contravention of 298(1). This does not have the result that the subpoena must be set aside with immediate effect and all documents produced to the Court returned (KS v Veitch (No 2) at [29] per Basten JA and [88] per Beech-Jones J). Instead, the Court can proceed to consider the next step of whether leave should be granted to allow access to the documents by a party (KS v Veitch (No 2) at [88]). 26Third, the power of the Court to grant leave to take any of the steps contemplated by s 298 or the granting of access to documents as contemplated by s 299B(3) (see below) is circumscribed by the operation of s 299D, which provides: "299D Determining whether to grant leave (1) The court cannot grant an application for leave under this Division unless the court is satisfied that: (a) the document or evidence will, either by itself or having regard to other documents or evidence produced or adduced or to be produced or adduced by the party seeking to produce or adduce the document or evidence, have substantial probative value, and (b) other documents or evidence concerning the matters to which the protected confidence relates are not available, and (c) the public interest in preserving the confidentiality of protected confidences and protecting the principal protected confider from harm is substantially outweighed by the public interest in admitting into evidence information or the contents of a document of substantial probative value. (2) Without limiting the matters that the court may take into account for the purposes of determining the public interest in preserving the confidentiality of protected confidences and protecting the principal protected confider from harm, the court must take into account the following: (a) the need to encourage victims of sexual offences to seek counselling, (b) that the effectiveness of counselling is likely to be dependent on the maintenance of the confidentiality of the counselling relationship, (c) the public interest in ensuring that victims of sexual offences receive effective counselling, (d) that the disclosure of the protected confidence is likely to damage or undermine the relationship between the counsellor and the counselled person, (e) whether disclosure of the protected confidence is sought on the basis of a discriminatory belief or bias, (f) that the adducing of the evidence is likely to infringe a reasonable expectation of privacy. (3) For the purposes of determining an application for leave under this Division, the court may permit a confidential statement to be made to it by or on behalf of the principal protected confider by affidavit specifying the harm the confider is likely to suffer if the application for leave is granted. (4) A court must not disclose or make available to a party (other than the principal protected confider) any confidential statement made to the court under this section by or on behalf of the principal protected confider. (5) The court must state its reasons for granting or refusing to grant an application for leave under this Division. (6) If there is a jury, the court is to hear and determine any application for leave under this Division in the absence of the jury." 27In this case his Honour was not satisfied that the relevant documents sought to be produced to the applicant would have "substantial probative value". Accordingly, his Honour was not satisfied that s 299D(1)(a) was established. His Honour also stated that s 299D(1)(c) was not made out, although I understood that to be a conclusion that his Honour considered followed from the applicant's failure to satisfy s 299D(1)(a). 28In KS v Veitch (No 2) at [31] Basten JA contrasted s 299D with the accepted test ordinarily applied when parties seek access to documents produced under subpoena, namely whether a "legitimate forensic purpose" for their production has been demonstrated. His Honour noted that the effect of these provisions is that there will be a "significant reduction in the material which might be made available to the accused" (at [32]). 29One particular constraint upon the concept of "substantive probative value" in this context is that, while the material sought concerned might relate only to the credibility of the complainant, s 299D(1)(a) was nevertheless concerned with admissible material. The restrictions on the admissibility of material concerning a complainant's sexual experience or lack of it as found in s 293 also engage s 299D(1) (KS v Veitch (No 2) at [37]). 30Fourth, in some circumstances a question will arise as to whether a document that is sought to be subpoenaed or has been provided to the Court does record a protected confidence. In that regard s 299B provides: "299B Determining if there is a protected confidence (1) If a question arises under this Division relating to a document or evidence, a court may consider the document or evidence. (2) If there is a jury, the document or evidence is to be considered in the absence of the jury. (3) A court must not make available or disclose to a party (other than a protected confider) any document or evidence to which this section applies (or the contents of any such document) unless: (a) the court determines that the document does not record a protected confidence or that the evidence would not disclose a protected confidence, or (b) a party has been given leave under this Division in relation to the document or evidence and making available or disclosing the document or evidence is consistent with that leave. (4) A court may make any orders it thinks fit to facilitate its consideration of a document or evidence under this section. (5) This section has effect despite sections 297 and 298." 31I consider the powers conferred by ss 299B(1) and (4) below. The combination of ss 299B(1) and 299B(3)(a) confirm that a Court can "consider" a document for itself before determining whether it records a "protected confidence". A Court can also make such a document available to a "protected confider" without the necessity of considering whether the criteria for the grant of leave in s 299D have been satisfied. Further s 299B(3)(b) confirms that the preconditions for the grant of leave specified in s 299D must be satisfied before access to produced documents recording a protected confidence can be granted to a party, "other than a protected confider". "Protected confider" is defined in s 295 and relevantly includes the "victim or alleged victim of a sexual assault offence by, to or about whom a protected confidence is made." No doubt it extends to their legal representative.
His Honour's judgment 32At the hearing of the application his Honour was provided with a copy of the Crown case statement, two statements from the complainant and a statement from a counsellor, who had treated the complainant for a number of years. The complainant's second statement recorded aspects of the sexual assaults alleged to have been committed by the applicant that were not recorded in the first statement. In her first statement the complainant also disclosed that she had been sexually abused by her stepfather from the age of 10 or 11 to the age of 17 years, but that she did not report those assaults to the police. 33The counsellor stated, inter alia, that the complainant had a history of self-harm and had, on multiple occasions, been admitted to mental health facilities for reasons relating to self-harm. There was other material before his Honour which indicated that the complainant has had a number of admissions to various hospitals for psychiatric treatment, including the hospitals that received the subpoenas the subject of the application for access. 34In the judgment refusing access, his Honour identified what was said by the applicant before him to be the three issues to which the documents sought related. The first issue was whether the complainant suffered psychological injury as a result of the alleged assault, as she claimed in her first statement. 35The second issue was whether the complainant was sexually assaulted by her stepfather, and if so what harm or damage she suffered. The applicant contended that this was an issue because, in her first statement, the complainant recounts that she told her previous case worker that she was submissive to the applicant, not because she was consenting, but because of the effects of prior sexual abuse. 36The third issue was said to be whether the complainant had suffered a "mental crisis" sometime after 25 November 2010, and if so what was its cause. This was said to be an issue because in her second statement the complainant explained that, after her first statement, she had suffered a "mental crisis" and that as a result she had decided to tell all that had happened on the day of the alleged sexual assault. 37His Honour recorded that counsel for the applicant advised that the issue in the trial was whether sexual intercourse had taken place at all. 38In relation to the first issue his Honour noted that the Crown did not intend to lead evidence that the complainant suffered psychological injuries as a result of the alleged assault by the applicant. His Honour contrasted this case with the Crown case considered in JAD v The Queen [2012] NSWCCA 73 where the psychological condition of the complainant was relied on by the Crown as rebutting a suggestion that the evidence was a fantasy or contrived (JAD at [13]). 39In relation to the second issue his Honour was not satisfied that there was any relevant link between the nature of the treatment undertaken in the past by the complainant and the issue of consent. His Honour added that the question in the trial was not consent but whether the act occurred at all. 40In relation to all of the matters relied on by the applicant, his Honour found that he was not satisfied that there was "any relevant connection between the material sought and any issue in the trial such as that the material has substantial probative value". As I have stated, his Honour was not satisfied that s 299D(1)(a) was established and appears to have concluded that it followed that the applicant failed to satisfy s 299D(1)(c).
Proposed Grounds of Appeal - Alleged error on his Honour's part 41Consistent with the approach outlined above I will address the proposed grounds of appeal which allege error by his Honour in refusing the application. I will then address the constitutional challenge.
Ground 1A: Alleged failure to inspect the subpoenaed material 42Proposed ground 1A contends that his Honour erred in failing to inspect the subpoenaed material in order to determine whether it recorded protected confidences. 43It was submitted on behalf of the applicant that, whilst it was reasonable to assume that most medical records relating to suicide attempts may contain a "protected confidence", his Honour should nevertheless have inspected the documents to determine whether the entirety of the documents that were produced recorded protected confidences. In particular it was contended that, before his Honour determined to apply the criteria stated in s 299D, his Honour needed to be satisfied that the communications were made "in confidence"; that all parts of the medical records related to counselling communications; and that counselling took place that satisfied s 296(5) of the Criminal Procedure Act. The applicant contended that, unless those issues were determined adversely to him, Chapter 6, Part 5, Division 2 was not engaged. If they were not, then the general law's less stringent test of whether the applicant had a legitimate forensic purpose in seeking access was applicable. 44In my view, this complaint has no substance. His Honour was not asked to determine whether or not the documents recorded a "protected confidence". Instead his Honour was only asked to determine an application to access documents recording protected confidences. Thus at the outset Counsel for the applicant stated to his Honour that it was "an application to gain access to protected confidences". Further, his Honour was provided with an eight page submission from the applicant entitled "Application for leave under s 299D of the Criminal Procedure Act ...". The balance of those submissions were exclusively directed to that topic and did not make any reference to any need for his Honour to first determine whether the documents recorded a "protected confidence". 45None of the parties invited his Honour to review the documents much less to first determine whether Chapter 6, Part 5, Division 2 was applicable. At one point Counsel for the applicant did state to his Honour that the documents sought "could contain protected confidences" but that was not accompanied by any request for access to those documents which did not. 46In my view the applicant does not have any prospects of demonstrating that it was erroneous for his Honour to only address the application that was made. Similarly it was not erroneous for his Honour to fail to review the documents individually when he was not requested to do so. 47In addition, a factual assumption upon which this proposed ground is based is that his Honour did not consider the documents for himself. There is no material capable of establishing that as a fact. To the contrary, in his judgment his Honour referred to his having "considered the material". This could be a reference not only to the material that was placed before his Honour by the parties, but it could also be a reference to the material produced on subpoena. The Court was advised that the recollections of counsel who appeared differed as to whether his Honour inspected the documents in court. This difference does not matter as his Honour may have reviewed them in his chambers. 48It is the applicant who alleges that that his Honour did not consider the material and he therefore bears the onus of proving it. He has no prospects of doing so. 49For the sake of completeness I note that it follows from what has been stated above that it is open to the applicant to make a further application to the District Court for production or access to so much of the material that was previously subpoenaed that does not record a "protected confidence". In considering such an application the Court is entitled to "consider" the material for itself (s 299B(1)) which clearly includes reading it. Also, as I have stated, the leave requirements in ss 298 and 299D do not preclude the Court from making the material available to the "protected confider" (or their legal representative) (s 299B(3)).
Ground 1B: Consent by the complainant to production 50Proposed Ground 1B asserts that his Honour erred in refusing access to the material in that the applicant contends that leave under s 298(2) was not required because the complainant had given consent to its disclosure within the meaning of s 300 of the Criminal Procedure Act. Section 300 of the Criminal Procedure Act specifies an exception as to the circumstance in which leave is required. It provides: "300 Effect of consent (1) This Division does not prevent the production of any document recording a protected confidence or the adducing of evidence disclosing a protected confidence or the contents of a document recording a protected confidence, in, or in connection with, any proceedings, if the principal protected confider to whom the proceedings relate has consented to the production of the document or adducing of the evidence. (2) Consent is not effective for the purposes of this section unless: (a) the consent is given in writing, and (b) the consent expressly relates to the production of a document or adducing of evidence that is privileged under this Division or would be so privileged except for a limitation or restriction imposed by this Division." 51The evidentiary basis for the suggestion that the complainant provided her consent is said to be a paragraph in her second statement stating: "I give police permission to access and copy all of my medical records". 52The question of what obligation would be imposed on the police if they were to receive copies of documents recording protected confidences is a large one. It is neither necessary nor appropriate to determine it on this application. For present purposes, all that need be noted is that this form of "consent" is not one that satisfies s 300(2)(b). Such a consent must expressly relate to material that is privileged under Division 2 of Part 5. In this case the complainant only agreed to disclose her "medical records" which are not necessarily the same as documents privileged under Division 2 of Part 5. 53Further to satisfy s 300(2) any such consent must expressly relate to the "production of a document or adducing of evidence". This requires, inter alia, the provision of an express written consent to the production of documents at least to, and most probably via, the Court, or the adducing of the documents in evidence. The critical aspect of such a consent is that it is an agreement for both parties to view the material. It is not sufficient that, at the investigative stage, the complainant may have agreed to their production to and copying by only the prosecution or some other entity or organisation such as the police. 54Further I note that no argument to this effect was raised before the trial judge. 55This proposed ground does not raise a matter that warrants a grant of leave to appeal.
Ground 1: Alleged failure to find the subpoenaed material had substantial probative value 56Proposed ground of appeal 1 contends that his Honour erred in finding that the material sought did not have substantial probative value on the basis that "it would only become relevant if the prosecution sought to rely upon subsequent treatment or counselling of the complainant as corroborative evidence". 57As formulated this ground misconceives his Honour's reasons. His Honour did not deny the relevance of the material sought, but instead applied the more stringent test of whether it had "substantial probative value". Further, his Honour did not state that the material would "only" be made available if the prosecution sought to rely upon the complainant's treatment as corroborative of her evidence that she was assaulted by the applicant. Instead, his Honour noted that, in circumstances where that was not part of the Crown case and it was the defence's case that sexual assault did not occur, his Honour was not satisfied that the material sought concerning counselling subsequent to the assault had substantive probative value. I see no error of principle in that approach. 58The balance of the submissions advanced in support of this proposed ground simply seek to reargue the conclusions that his Honour reached in not being satisfied of the criteria in s 299D(1)(a) was satisfied. They do not identify any error of principle that would warrant a grant of leave to appeal.
Ground 2: Alleged failure to consider the defence case 59Proposed ground 2 asserts that his Honour erred in addressing the question of substantial probative value on "the assumption that the case would be run as presently intended by the prosecution in isolation from how the case may be run by the defence". In particular it was submitted that his Honour did not have regard to the possibility that the defence may require the prosecution to call or lead evidence in the prosecution case, otherwise not relied upon by the prosecution. 60This proposed ground also has no substance. The approach adopted by his Honour was to treat the issue of substantial probative value having regard to the way that he was advised that the Crown case was to be conducted and what he was advised the defence would be, namely, that sexual intercourse did not occur. 61His Honour clearly contemplated the possibility that the issues may develop and change. For example his Honour stated: "It is not presently part of the Crown case that any subsequent psychological treatment is relevant to any issue in the Crown case against the accused. Should the Crown seek to rely on the complainant's attendance [at] counselling as corroboration of her allegations against the accused then the present application can be renewed." 62Thus, his Honour was cognisant of the possibility that the Crown case may change, and was also aware that the application could then be renewed and the question of substantive probative value assessed at that time. 63This proposed ground does not raise a matter that warrants a grant of leave to appeal.
Ground 3: Alleged failure to consider the complainant's medical history 64Ground 3 complains that his Honour erred in determining the probative value of the material to which access was sought, without properly considering the relevance of the complainant's known medical history. This known medical history was said to be relevant to the reliability of her claimed memory recall, and her motivation. 65The particulars to this ground assert that it was "not in dispute" that the complainant had in the past complained of symptoms such as hearing voices, that she had reported using illicit drugs, that she had been scheduled upon her admission to various hospitals and that she had suicidal tendencies. I will not pause to address whether or not those matters were or are "in dispute". 66The critical point is that this aspect of the application raises an entirely new basis for granting access to the produced documents. I have set out above the issues which the applicant identified as being the basis on which the documents were sought. None of them come close to the basis now formulated for this ground of appeal which appears to be directed towards an assertion that the complainant's medical history renders her a fantasist. An application for leave to appeal an interlocutory order is not an appropriate forum to raise a new basis for seeking access to documents. 67This proposed ground does not demonstrate any error of principle on the part of his Honour, or otherwise raise any matter warranting the granting of leave to appeal.
Ground 4: Alleged failure to consider s 293(6) of the Criminal Procedure Act 68Proposed ground 4 complains that his Honour erred in finding that the material to which access was sought did not have substantial probative value, without having regard to s 293(6) of the Criminal Procedure Act. Section s 293(6) provides: "293 Admissibility of evidence relating to sexual experience ... (6) If the court is satisfied: (a) that it has been disclosed or implied in the case for the prosecution against the accused person that the complainant has or may have, during a specified period or without reference to any period: (i) had sexual experience, or a lack of sexual experience, of a general or specified nature, or (ii) had taken part in, or not taken part in, sexual activity of a general or specified nature, and (b) the accused person might be unfairly prejudiced if the complainant could not be cross-examined by or on behalf of the accused person in relation to the disclosure or implication, the complainant may be so cross-examined, but only in relation to the experience or activity of the nature (if any) so specified during the period (if any) so specified." 69The applicant contends that it was incumbent on his Honour to assess the question of substantial probative value on the basis that the complainant's statements disclosed that she had been the subject of similar sexual assaults at the hand of another identifiable perpetrator, who has not been prosecuted. 70No submission concerning s 293(6) was made to his Honour. To the extent that this proposed ground has any connection to the issues identified before his Honour as a basis for the production of the documents it appears to relate to the second issue, namely, was the complainant sexually assaulted by her step-father? His Honour rejected the contention that this issue warranted the granting of access to documents on the basis that he had been advised that the issue was not consent, but instead whether or not sexual intercourse had taken place. 71On this application, the Crown disclaimed any contention that the presentation of its case would involve it disclosing or implying that the complainant had, or may have had, a general or specified sexual experience. Nothing in the Crown case statement supports any suggestion that it would attempt to lead evidence to that effect. In those circumstances this proposed ground does not raise any matter that warrants a grant of leave to appeal.
Ground 5: Function vested by Chapter 6, Part 5, Division 2 repugnant to the integrity of State Courts 72Proposed ground 5 contends that ss 298(1) and 298(2) are constitutionally invalid because the terms of s 299D imposing restrictions on the grant of leave require the Court to perform a task that it is said it cannot perform. In particular it is said that s 299D(1) cannot be applied at the stage of issuing a subpoena because the section requires consideration of the documents sought but that cannot occur as they have not yet been produced to the court. This "problem" is said to be accentuated by the fact that it is likely that in many cases the same source will produce some documents that do record a protected confidence and some that do not. The applicant contends that this means that a Court cannot know when it approaches the issue of whether or not to grant leave to issue a subpoena whether it is acting under s 298(1) and must apply the criteria in s 299D as it will not have the documents necessary to resolve that issue. The reposing of such a task on a court is said to be "repugnant to the nature of the judicial power of a court or the institutional integrity of courts in [New South Wales] which are repositories of Federal judicial power". 73A similar argument was initially raised, but not pursued in KS v Veitch (No 2) (at [10(a)] per Basten JA). In any event, the premise of the argument was rejected in KS v Veitch (No 2). If a Court determining an application for leave to issue a subpoena which appears to attract the operation of s 298(1) considers that it is necessary to review the material sought to be produced then it has power under s 299B(4) to make an order requiring the production of the material sought to itself (KS v Veitch (No 2) at [28] and [85]). My judgment in KS v Veitch (No 2) at [85] addressed the logistics as to how that might occur. The applicant's submissions did not address this aspect of KS v Veitch (No 2) much less identify why it might warrant reconsideration. 74The applicant filed supplementary submissions challenging one aspect of KS v Veitch (No 2) which was said to be relevant to this proposed ground of appeal, namely the conclusion that s 298(2) is not directed to production to a party but rather to constraining production by a holder of documents containing a protected confidence to the Court (at [23] per Basten JA). The only real support for the applicant's contention is to be found in my reasons in KS v Veitch (No 2) at [88] where I referred to allowing "production of the document to a party under s 298(2)". On reflection I agree with Basten JA and Hall J on this issue. The question of granting leave to obtain access is addressed by s 299B(3). In any event, I see no reason to reopen this aspect of KS v Veitch (No 2). It would make no difference to the outcome of this ground which, as I have explained, is premised on a point that was comprehensively rejected by the Court in KS v Veitch (No 2). 75The submissions in support of proposed ground 5 do not raise any matter that warrants a grant of leave to appeal.
Ground 6: Kable 76Ground 6 contends that Chapter 6, Part 5, Division 2 of the Criminal Procedure Act is invalid because the conditional prohibition found within s 299D is beyond the legislative power of the parliament of New South Wales. It is submitted that the effect of s 299D is that it is a direction to judicial officers to "act in a manner which will lead to both an unfair judicial process and ultimately an unfair trial". The applicant's submissions refer to a number of decisions concerning the operation of Chapter III of the Constitution and then rely on the High Court's decision in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51 and the cases that have considered that decision. It is submitted that "the legislature cannot impair the institutional integrity of a court". The applicant asserts that Chapter 6, Part 5, Division 2 and especially s 299D effects such an impairment. 77The same argument was considered and rejected in KS v Veitch (No 2). In that case the contention was that: "39 ... although the offences arose under State law in a State court, their effect was to deprive State courts of a characteristic essential to their continued operation as repositories of federal jurisdiction under Ch III of the Constitution. Thus Ch III imposed a constitutional restraint on the power of a State to vary traditional procedures operating in the conduct of criminal trials if to do so would render such trials unfair." 78This contention was rejected by the Court in KS v Veitch (No 2) at [63] to [67] per Basten JA (with Harrison J and myself agreeing): "63 Three factors are critical to the proper disposal of the constitutional challenge. First, the law in question is a State law relating to evidence and procedure which does not (and cannot) apply of its own force in federal jurisdiction. Accordingly it does not directly engage principles regarding the scope of federal judicial power. The cases in which a challenge has been raised to the constitutional validity of a law limiting the availability of commonly used procedures, or rules of evidence, have arisen in federal jurisdiction. Their application in relation to State jurisdiction is less clear, not only because the doctrine of the separation of powers has a different operation under State law, but because their relationship with aspects of the separation of powers is indirect. 64 Secondly, because it is a law relating to evidence and procedure, it stands squarely within the power of the Parliament with respect to the regulation of criminal trials. It reflects a public policy which has received greater attention and emphasis in recent years than in earlier times, but is arguably a product of more enlightened attitudes towards the victims of sexual offences and the importance of balancing the legitimate interests of the accused against the legitimate interests of victims of sexual assaults. The law is neither arbitrary nor manifestly disproportionate in its response to a perceived weakness in traditional trial procedure: cf Williamson at 117 (Isaacs J). 65 Thirdly, as noted by Gummow J in Nicholas, its effect may be to make it more difficult for an accused person in certain circumstances to defend himself. Nevertheless, to protect the confidences as between the victim and a counsellor is not to deprive the accused of some source of information to which he is presumptively entitled. Nor is the exclusion of protected confidences a law which would tend to bring the criminal trial process into disrepute. 66 There are other areas of the law where public interests justify exclusion of documents or other information from disclosure in criminal or civil proceedings. Obvious examples are public interest immunity (which may extend to national security or to the identify of police informers) and client legal privilege (which covers communications between client and lawyer). In some jurisdictions protection is given to doctor/patient communications generally (therapeutic privilege), to priest and penitent communications and to those providing information to journalists. Such matters illustrate the acceptance that the interest of the courts in determining proceedings, including criminal proceedings, on all available evidence must in some circumstances be qualified to the protection of other public interests. The protection of sexual assault communications involves a balance of policies which has been determined in a particular way by the State Parliament and in which, subject to constitutional constraints, the court should not interfere. 67 The final step in the argument is the proposition that, although the choice was one available to the State Parliament, the imposition of the privilege diminishes the character of a State court in which it must be applied in such a way as to render the court an inappropriate vehicle for the reception of federal jurisdiction. Because the Commonwealth has no direct interest in regulating sexual offences within a State, it is largely hypothetical to ask whether the sexual assault communications privilege could be adopted as part of Commonwealth law. However, for the reasons given above, there is no reason to suppose that it would impinge unconstitutionally on the exercise of federal judicial power if the Commonwealth sought to protect victims of sexual assault from disclosure of counselling confidences. Accordingly the constitutional challenge must fail." (emphasis added) 79The applicant's supplementary submissions takes issue with this analysis. The applicant (respectfully) submits that Basten JA was in error in KS v Veitch (No 2) at [63] in stating that the provisions in questions involve "a State law relating to evidence and procedure which does not (and cannot) apply of its own force in federal jurisdiction". He notes that such state laws will apply to the exercise of federal jurisdiction by the operation of s 79(1) of the Judiciary Act 1903 (Cth). This submission only demonstrates the correctness of Basten JA's analysis. When a state law is picked up and applied by s 79(1) of the Judiciary Act it is not applying "of its own force". 80The applicant's submissions on this ground also instance examples of Commonwealth offences which, if prosecuted in New South Wales courts, may engage Chapter 6, Part 5, Division 2 of the Criminal Procedure Act (eg sexual slavery and servitude: s 270.6 of the Criminal Code Act 1995 (Cth)). He submits that, with such prosecutions, the state law, being Division 2 of Part 5, "would apply in that context". Nothing in KS v Veitch (No 2) suggests to the contrary. The applicant also submits that Basten JA's "reference [presumably at [63] of KS v Veitch (No 2)] to the distinct nature of the separation of powers at state level ... is not a basis to hold that the Kable principle does not apply". Nothing in KS v Veitch (No 2) suggests that the "Kable principle does not apply". To the contrary, in KS v Veitch (No 2) at [63] to [67] Basten JA alluded to a potentially different standard of constitutional scrutiny of laws regulating the practice and procedure of state courts exercising federal jurisdiction (ie Kable and the cases that have considered it) compared with laws regulating the practice and procedure of courts established under Chapter III. In KS v Veitch (No 2) at [67] his Honour concluded that Chapter 6, Part 5, Division 2 met the standard for the latter which had the consequence that it satisfied the standard for the former. 81KS v Veitch (No 2) is a recent and considered judgment of this Court. Nothing in the applicant's submissions on these grounds warrants any reconsideration of it. 82I propose that the application for leave to appeal be refused.
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: 20 March 2013
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