R v Bruce RUSSELL

Judgment 1HIS HONOUR: The accused is to be tried before a jury with respect to five counts of sexual assault of the complainant, HS. Each of the counts on the indictment is an offence under s 61I of the Crimes Act 1900. The accused's legal representatives have served a number of subpoenas in the proceedings including subpoenas on St Vincent's Hospital and the Royal Prince Alfred Hospital. The schedule to each of those subpoenas on the hospitals seeks "All documents and records in any way relating to [the complainant]." 2Although it was suggested during submissions that the subpoenas are too widely drawn, the hospitals did not object to the subpoenas, they did not seek to have the subpoenas set aside and indeed they have complied with the subpoenas in each case and produced the documents sought under the subpoena to the court. They are voluminous. The documents produced by St Vincent's Hospital comprise some six lever arch folders and the documents produced by the Royal Prince Alfred Hospital, although not actually contained within lever arch folders, would probably take up another six such folders. 3When the trial was called on before me on Monday of this week Ms Hampel appeared on behalf of the complainant. With respect to the documents then produced by St Vincent's Hospital Ms Hampel informed me that a claim of sexual assault communication privilege under Div 2 of Pt 5 of Ch 6 of the Criminal Procedure Act 1986 (the Act) was made with respect to each and every document produced. Ms Hampel informed me that she had not at that time inspected the documents produced by the Royal Prince Alfred Hospital and in fact at that time an access order had not been made, and I granted access only to Ms Hampel with respect to those documents. 4On that day Ms Hampel provided to me a document headed, "St Vincent's Hospital Brief Summary Of Subpoena Material". I noted that that document referred to there being within volume 2 of six volumes of the material produced by St Vincent's, documents relating to "Left flank pain, regular admissions due to this." And with respect to volume 5 of 6 there is again a reference in that document to "Flank pain" and further in relation to that volume there is also a reference to "Hand injury". I take that to mean that there were documents relating to a hand injury suffered by the complainant. 5The question arises whether when an alleged victim of sexual assault attends a hospital for treatment of some physical injury which is not related to an actual sexual assault, any communication made by the complainant to the hospital staff about that matter is privileged from production on the ground of sexual assault communication privilege. 6I have had the benefit of reading the judgment of his Honour Judge Berman SC in R v Markarian [2012] NSWDC 197 which was provided to me by Mr Skinner of counsel who now appears for the complainant. 7Judge Berman points out a number of difficulties in both the interpretation and practical implementation of the legislation relating to sexual assault communication privilege. Some of those problems were referred to by the Court of Criminal Appeal in KS v Veitch (No 2) [2012] NSWCCA 266, a decision that was delivered after Judge Berman delivered his judgment in Markarian. In Veitch (No 2), Basten JA said that the legislative provisions in relation to sexual assault communication privilege revolve around the concept of a "protected confidence" within the definition in s 296 of the Act. Section 296 defines a protected confidence as a "counselling communication" that is made by, to or about a victim or alleged victim of a sexual assault offence. 8A counselling communication is defined under s 296(4) as 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. 9Section 296(4)(a), in defining a counselling communication, refers to a communication made in confidence by the counselled person to the counsellor who is counselling the person in relation to any harm the person may have suffered. The term "harm" is defined in s 295(1) to include: actual physical bodily harm, financial loss, stress or shock, damage to reputation or emotional or psychological harm (such as shame, humiliation and fear). 10In Veitch (No 2), Basten JA said that it might be inferred from the fact that the person being counselled is the victim of an alleged sexual assault, that the harm referred to in s 296(4)(a) is the harm suffered by the person as a consequence of the alleged sexual assault. However, s 296(2) of the Act provides that a counselling communication is a protected confidence for the purposes of Div 2 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 the sexual assault offence or alleged sexual assault offence, or any condition arising from the sexual assault offence or alleged sexual assault offence. 11Basten JA said, at para 18, that "[t]he expansive provisions of s 296(2) tend to conflict with the definition of counselling communication in s 296(4)." His Honour states that one explanation for the expansive interpretation is that Parliament wished to avoid the victim of a sexual assault being discouraged from reporting the offence if that course might result in revelation of any other disclosures made in counselling sessions, even if unrelated to the sexual assault. It is clear, however, that these statements by his Honour were obiter as his Honour accepted the expansive construction of s 296(2) for the purpose of testing a constitutional challenge to the provision. 12The operation of the privilege comes from s 298 of the Act which provides that: (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. 13There is no issue that the subpoenas directed to St Vincent's Hospital and the Royal Prince Alfred Hospital were issued without the leave of the court. However, in Veitch (No 2) Basten JA states, at para 29, that it is open to the trial court to disregard that irregularity and consider the documents in determining whether the parties should have access to them. That is an entirely reasonable approach because the tests for leave in issuing the subpoena are the same tests that apply when the court determines whether leave should be granted to the parties to have access to the documents. 14Section 299D(1) of the Act provides that: "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. 15Section 299D(2) provides as follows: "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, and (f) that the adducing of the evidence is likely to infringe a reasonable expectation of privacy. 16Although not stated in express terms I would construe s 299D(2)(f) as referring to an infringement of a reasonable expectation of privacy as arising from counselling. That interpretation is consistent with the other provisions of s 299D(2). 17Section 299D(3) provides that: 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. 18In these proceedings I have before me a confidential statement of the complainant that has been marked Exhibit B on the application. 19By way of background and in seeking to demonstrate a legitimate forensic purpose for the issue of the subpoenas on the hospitals, Mr Clarke of counsel who appears for the accused has referred me to the criminal record of the complainant and to a number of COPS event reports which were subpoenaed from the New South Wales Police. 20Before coming to those documents I should shortly state that the Crown case is that the accused was unknown to the complainant and that on the day of the alleged offences she saw him in the foyer of the building where she resided and that he travelled in the lift up to her floor. The complainant alleges that shortly after she entered her apartment the accused knocked on her door and that, when she opened the door, he pushed his way into her apartment and forcibly sexually assaulted her. 21I am told by Mr Clarke that the defence case is that the accused was well known to the complainant and that they had had an ongoing relationship whereby the accused paid the complainant money for sex, usually in the sum of twenty dollars. The defence case is that the complainant only had consensual sex with the accused on the day of the alleged offences. However, on that day the accused had only ten dollars and he gave that money to the complainant and she appeared to be happy with that. 22The complainant's criminal record discloses that she has numerous convictions for maliciously set fire to buildings, attempted arson and public mischief. However, it appears that her last conviction for any offence was in 1997 for larceny as a bailee. That is some sixteen years ago. I should say that also recorded are a number of convictions for soliciting. The COPS event reports, which span the period November 2004 to February 2013, without going into detail, indicate the complainant has a serious and ongoing mental health history. 23Mr Clarke informs me that the complainant also has a history of making false reports about offences committed upon her, has a history of illicit drug use, is an arsonist, has made numerous self-harm attempts or threats, has reported auditory hallucinations in the past and has a history of effectively "hospital shopping". He submits that medical records from the hospitals may go towards establishing those matters. 24I have been provided with copies of all documents produced by St Vincent's Hospital and I have been provided with the original documents provided by the Royal Prince Alfred Hospital. 25Following discussions between Mr Skinner and Mr Clarke, Mr Skinner has marked with green and yellow tags all documents produced by those hospitals that may possibly be relevant to the defence case concerning the past history of the complainant to which I earlier referred. Mr Skinner, however, claims sexual assault communication privilege on behalf of the complainant with respect to each of those tagged documents. In written submissions Mr Skinner submits that the definition of "protected confidence" in s 296 of the Act is so wide as to capture all documents generated by a history given by the complainant to ambulance officers, nursing staff and doctors at the hospitals. 26I have now inspected all the documents produced by St Vincent's Hospital and the Royal Prince Alfred Hospital that have been tagged by Mr Skinner. Those documents fall within the following categories: ambulance patient healthcare records; hospital progress notes; mental health assessments; requests by ambulance officer for assessment of a mentally ill or mentally disturbed person; requests by a police officer for assessment; social worker reports; Emergency Department triage notes; Emergency Department clinical records; various forms under the Mental Health Act including a medical report as to the mental state of a detained person; a medical certificate as to examination or observation of a person and admission summary sheets. 27I have formed the view that many of the documents for which a claim of sexual assault communication privilege is made do not attract the privilege. Returning then to the provisions of Div 2 of the Act which, as I stated earlier, revolve around the concept of a "protected confidence" as defined in s 296 of the Act. A protected confidence means a "counselling communication" that is made by, to or about a victim or alleged victim of a sexual assault offence. Under s 296(4)(a) a "counselling communication" means a communication made in confidence by the counselled person to the counsellor who is counselling the person in relation to any harm the person may have suffered. A "counselling communication" also has an expanded meaning under s 296(4)(b), (c) and (d). However, s 296(5) provides: For the purposes of the 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. 28Therefore, for a person to counsel another person, it is first necessary that the counsellor has undertaken "training or study or has experience that is relevant to the process of counselling persons who have suffered harm." Neither the word "counselling" or the phrase "process of counselling" which are used in s 296(5)(a) are defined in the Act. The rule of statutory construction is that, subject to a contrary intention expressed in the legislation, general words should be given their plain and ordinary meaning. The words "counsel," "counselling," and the phrase "counselling process" have plain, everyday meanings. The Macquarie Concise Dictionary (4th Ed) defines the word "counsel" relevantly as, "Advice, opinion or instruction given in directing the judgment or conduct of another." Further, in determining the meaning of "counsel" and "counselling" and "counselling process" it is of assistance to have regard to the policy underlying this legislation. That policy was stated by the Attorney General in introducing certain amendments to the legislation in 2002. The Attorney General said: The policy behind the sexual assault communications privilege is that the benefits of counselling services provided to a sexual assault victim should not be compromised by the prospect that communications made in connection with those services may later be revealed to the accused or disclosed in court. The Government has taken the view that the public interest in preserving the confidentiality of counselling communications, including counsellors' notes, in order to protect the counselling relationship and thereby assist the victim in overcoming the trauma of the attack often outweighs the public interest in allowing inspection of the notes by the accused or his or her lawyer. 29I should say, of course, that in the Second Reading speech the Attorney General appears to suggest that the privilege is confined to the counselling of a victim or alleged victim of sexual assault in relation to that sexual assault or alleged sexual assault. However, as I have indicated, these provisions have a much wider operation. The privilege would attach to protected confidences made by a person who is being counselled so long as the person is a victim of a sexual assault or alleged sexual assault. The counselling does not, in my view, under the plain terms of this legislation, have to relate to a sexual assault or harm that has been suffered as a result of a sexual assault or alleged sexual assault. 30A construction of the words "counselling", "counsel" and "counselling process" in conformity with their plain and ordinary meaning is consistent with the matters set out in s 299D(2) which the court must take into account in determining the public interest in preserving the confidentiality of protected confidences and protecting the principal protected confider from harm. 31To attract sexual assault communication privilege, a communication by or about a victim of a sexual assault offence must be made in confidence by the counselled person to the person who is counselling the counselled person in relation to any harm the counselled person may have suffered, or in the circumstances as referred to in s 296(4)(b), (c) or (d). I will assume, for the purpose of this application, that all communications made by the complainant to the hospitals were confidential. As I said earlier, a confidential statement of her is before me. However, the issue, in my view, is whether the communications, the subject of the claim of privilege, were made to a counsellor. 32Section 296(5)(a) imposes a requirement that for a person to counsel another person the person must have "undertaken training or study or has experience that is relevant to the process of counselling persons who have suffered harm". In my view, it cannot be said that a communication made to an ambulance officer is a communication made to another person who is counselling the person in relation to any harm the person may have suffered. It is not the commonly understood role of ambulance officers to counsel persons. Further, in relation to the documents the subject of the subpoenas, there is no evidence that the relevant ambulance officers "[have] undertaken training or study or [have] experience that is relevant to the process of counselling persons who have suffered harm". However, such training, study or experience may be inferred in the case of hospital staff such as nurses, doctors and social workers, particularly when carrying out mental health assessments of patients. 33Further, many of the documents over which a claim of privilege is made are Emergency Department notes recording the symptoms or complaints made by the complainant with respect to purely physical ailments when she presented at the Emergency Department. Again, in my view, it cannot be said that a communication made by the complainant to a Triage nurse at an Emergency Department in describing her symptoms in relation to a purely physical complaint were made by the complainant to a "counsellor". I note that with respect to some of the Emergency Department records over which a claim of privilege is made the information was provided to the hospital not by the complainant but by the police or by ambulance officers. 34Accordingly, with unfeigned respect to Judge Berman, I am unable to agree with the conclusion he reaches at paragraoh 20 of His Honour's judgment in Markarian that s 296 of the Act is so widely drawn that it applies to treatment for any physical injury at a casualty department. Again, with greatest respect to His Honour, that conclusion overlooks the requirement in s 296(4) that to attract the privilege a communication must be made by the person to a person who is counselling the person or is made in the course of counselling. I am unable to see how the placing of a bandaid on a scratch at a casualty department (to use His Honour's example) could be described as counselling or being part of the process of counselling. Certainly the reporting of physical symptoms to a Triage nurse at an Emergency Department could not be categorised as counselling or being part of the process of counselling. 35Further, many of the documents over which a claim of privilege has been made do not contain a relevant communication as referred to in s 296(4) of the Act (either directly or inferentially) and therefore cannot attract the privilege. 36Claims of privilege are also made with respect to a number of requests by Police Officers that the complainant be mentally assessed. Clearly those documents contain no relevant communication and so the privilege could not attach to them. In relation to the documents over which a claim of privilege is made, I have placed blue tags on the documents in respect of which I uphold the claim of privilege. The next question that arises is whether leave should be granted under s 298(2) of the Act for any of the documents for which the claim of privilege is upheld to be produced to the parties. In determining whether to grant leave I must be satisfied of the matters referred to in s 299D(1)(a), (b) and (c), and with respect to s 299D(1)(c) I must take into account the matters in s 299D(2). 37After careful consideration I have determined that those privileged documents relating to the complainant's illicit drug use and auditory hallucinations do have substantial probative value with respect to her credit and in particular to her reliability. I am also satisfied, pursuant to s 299D(1)(b), that in relation to those matters other documents or evidence are not available. I am further satisfied, pursuant to s 299D(1)(c), that the public interest in preserving the confidentiality of protected confidences and protecting the principal 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. In determining that matter I have taken into account the matters referred to in s 299D(2). 38Doing the best I can, particularly in attempting to read handwriting often very difficult to decipher, I am unable to identify any document going to a history of the complainant of making false reports about offences committed upon her. Further, in my view documents relating to arson by or upon the complainant, self-harm attempts or threats and what might be described as "hospital shopping", do not have substantial probative value and accordingly leave should not be granted for access by the parties to those documents. 39To assist Mr Skinner I have marked with red tags all documents with respect to which I have upheld the claim of privilege but are documents with respect to which I grant leave for production to the parties. As I have said those documents fall into two categories, first, illicit drug use by the complainant and, secondly, complaints by the complainant of auditory hallucinations. 40I should make it clear that it is only with respect to the parts of the documents going to those issues that leave is granted. To avoid more time being taken up in redacting documents I would ask Mr Skinner to obtain instructions that only counsel, that is Mr Clarke and the Crown, are able to have access to the documents on the understanding that leave is only granted with respect to those parts of the documents going to the two issues I have referred to. 41Finally, the parties are to have access to all documents marked by Mr Skinner with a yellow green tag with respect to which I have not upheld a claim of privilege. In other words, those documents marked with a yellow or green tag but not marked with a blue tag. [NB: In the course of delivering judgment the Crown informed the court that the Director of Public Prosecutions had directed that there be no further proceedings in the matter. By agreement between the parties the judgment was still delivered.]