[2019] ACTSC 52

CRIMINAL LAW - EVIDENCE - Leave to issue subpoenas - subpoenas may disclose protected confidences - leave for the disclosure of a protected confidence - Division 4.4.3 Evidence (Miscellaneous Provisions) Act 1991 (ACT) - legitimate forensic purpose - whether court satisfied an arguable case - whether documents would materially assist applicant's case in the proceedings - evidence that complainant may have cognitive difficulties - evidence that complainant may not have recalled events throughout the period they are alleged to have occurred

Court Procedures Rules 2006 (ACT), r 6602(2)

Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 79F, 79F(2), 79F(2)(b), 79G, 79G(2), 79G(2)(a), 79H, Div 4.4.3

KS v Veitch (No 2) [2012] NSWCCA 266; 84 NSWLR 172

R v WR (No 2) [2009] ACTSC 110

1. Mr Chute is the subject of a special hearing which is listed to commence on 18 March 2019. He faces 16 counts relating to six complainants.

2. By application dated 27 February 2019, he has sought leave to issue six subpoenas to persons whose records may disclose protected confidences within the meaning of Div 4.4.3 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT).

3. In dealing with this application I have adopted the same approach as approved by Refshauge J in R v WR (No 2) [2009] ACTSC 110 at [33], namely, to first consider whether there is a legitimate forensic purpose under s 79F and then, if so satisfied, permit a subpoena to be issued in order to obtain the documents so as to be able to conduct a preliminary examination of them under s 79G before deciding under s 79H whether to give leave for the disclosure of the protected confidence.

4. Section 79F obliges the court to refuse leave if the court is not satisfied that the applicant has established a "legitimate forensic purpose" for seeking the leave. In order to establish such a purpose, s 79F(2) requires the applicant to:

(a) identify a legitimate forensic purpose for seeking the leave; and

(b) satisfy the court that there is an arguable case that the evidence in relation to which the leave is sought would materially assist the applicant's case in the proceeding.

5. The concept of legitimate forensic purpose is well-established. So far as (b) is concerned the legislative formulation requires that there be established at this stage an "arguable case" that the evidence in relation to which leave is sought "would materially assist" the applicant's case in the proceedings.

6. In KS v Veitch (No 2) [2012] NSWCCA 266; 84 NSWLR 172, Basten JA said (at [31]-[32]) when dealing with similar New South Wales provisions:

31. Under the general requirements in relation to a subpoena or a notice to produce, it is not necessary that the moving party demonstrate that the material sought will be admissible in evidence; the accepted test of a "legitimate forensic purpose" is undoubtedly broader than that. An accused may well seek access to documents in order to formulate lines of crossexamination, either by suggesting that the applicant has made inconsistent statements to a counsellor in relation to the circumstances of the offence, or by using material in the medical records to suggest that the evidence of the applicant may be unreliable. It may be possible to formulate a line of cross-examination without seeking to admit into evidence the document or the information contained in the document.

32. It follows that the first limb, requiring that the court be satisfied that the document or evidence "have substantial probative value", before allowing the accused access to it, will constitute a significant reduction in the material which might be made available to the accused under the general law with respect to access to material on subpoena or through a notice to produce (or, indeed, a call for a document in the course of proceedings). This reduction is the result of the inclusion in s 299D(1) of paragraph (a).

7. The same comment as made by Basten JA at [32] may be made about the operation of s 79F(2). It should be noted that the test in s 79F(2)(b) combines the concept of "an arguable case" with the expression "would materially assist". Having regard to the fact that the applicant will necessarily not have access to the documents, it may be that in the absence of evidence about the content of the documents it is difficult to establish an arguable case that the evidence "would" materially assist the applicant's case. Having regard to the late stage of the proceedings at which the present application was made and the limited argument made by the parties, this case is not a suitable vehicle in which to examine the tension that exists within s 79F(2)(b).

8. The three offences with which Mr Chute has been charged and which relate to a complainant who I will refer to as Complainant 4, are offences alleged to have occurred in 1981. They were first reported to police in 2017. There is evidence that they were disclosed to other people as early as 2013. The applicant submitted that the legitimate forensic purpose was in order to obtain evidence which would demonstrate their unreliability.

9. The basis for that contention has two elements. These elements are derived from material in records of the Canberra Hospital which were put into evidence. (My reasons for admitting that evidence are given later in these reasons.)

10. First, there is evidence before the court which indicates that Complainant 4 has a history which includes self-medicating with alcohol and cannabis over decades, reporting suffering from auditory hallucinations, having significant cognitive difficulties particularly in relation to memory and a possible acquired brain injury due to multiple head injuries in his teens and 20s.

11. Second, there is evidence in relation to his first disclosure of the alleged sexual assaults that leaves open the possibility that he may not have recalled these events throughout the period since they occurred. This includes a number of references to him having taken some months to prepare a statement for the purposes of either the police or the Royal Commission into Institutional Responses to Sexual Abuse with assistance from a counsellor from Service Assisting Male Survivors of Sexual Assault (SAMSSA).

12. The two elements also derive support from a report by a forensic psychiatrist, Dr John Roberts, who had access to the Canberra Hospital records. That report provides:

I note that the important aspect of assessment forensically in relation to childhood sexual assault is the question that I posed to persons referred to me for such assessments, namely as to whether they have always remembered that the assault took place or alternatively if recollections of the assault had appeared at a certain point in time.

Such memories appearing for the first time of a certain point in time namely memories that were not always present are recollections that are from the forensic/psychiatric viewpoint of questionable validity and would require confirmation by independent corroboration.

This opinion is that of the learned professional bodies in psychiatry and psychology in the English-speaking world.

...

Reference is made to "[Complainant 4] reports that he had recently disclosed a sexual abuse he suffered under the Marist Brothers when he was at school. Recent media events has brought this hidden issue to the fore."

Comment: it is not clear from this statement as to whether Dr Matias is referring to recovered memories but the implication from that statement is that that could be a possibility.

13. He then referred to some of the entries relating to assistance from a counsellor at SAMSSA to make a statement to the police and Royal commission. Dr Roberts comments:

I would consider it important from the forensic psychiatric viewpoint to ascertain what modalities of treatment have been offered by SAMSSA to [Complainant 4] since it would be necessary to determine whether such treatment modalities and the involvement of [the counsellor] in the context of his claims childhood sexual abuse and helping him make a statement to the police and the Royal Commission constituted interactions that may have assisted in memory recovery and distortions of memory.

(a) "The Secretary of Service Assisting Male Survivors of Sexual Assault";

(b) "The Secretary of the Mood Disorders Group Belconnen";

(c) Dr Emma Glanville, a psychiatrist;

(d) Dr Ingrid Butterfield, a psychiatrist;

(e) "Manager, City Mental Health"; and

(f) Dr May Matias, a psychiatrist.

15. The subpoenas sought to be issued each seek "treatment records, notes of attendances, letters and reports in respect of [Complainant 4] for the period 1 January 2013 to 1 January 2019".

16. Each of the proposed recipients of the subpoenas has been identified because of a reference to the person or entity within notes held by the Canberra Hospital and obtained by the Australian Federal Police as part of their investigation of the allegations against the accused.

17. The definition of counselling is so broad that the definition of "protected confidence" will cover many medical records brought into existence by a psychiatrist. That is because the definition of counselling includes "counselling, therapy or treatment for [a] psychological condition". A "counsellor" means a person who "has undertaken training or study, or has experience, relevant to the process of counselling people who have suffered harm". Those definitions are then used in the definition of "counselling communication" which in turn feeds into the definition of "protected confidence".

18. In my view, the applicant has established that there is a legitimate forensic purpose for seeking leave, namely the obtaining of material relevant to:

(a) the state of memory and cognitive function of Complainant 4; and

(b) whether or not Complainant 4 has always remembered the matters that are the subject of the charges or whether he only recalled those matters at a particular time.

19. The next question is whether the court is satisfied that there is "an arguable case" that the evidence "would materially assist" the applicant's case. As pointed out above, this is a problematic formulation because whether or not evidence will materially assist the applicant's case depends upon the content of the records which are sought to be obtained. It is very difficult to have an arguable case without knowing with a degree of precision what the evidence sought to be obtained is. In the present case there is, in the light of the material in the Canberra Hospital records, a reasonable prospect that material subject of at least some of the proposed subpoenas will materially assist the applicant's case by providing evidence of more information about the extent of Complainant 4's cognitive impairments or the process by which a statement was formulated for the purposes of providing it to the Royal Commission or the police or both.

20. As counsel for the Crown pointed out, there is also evidence which is consistent with the complainant having had a memory of the relevant events throughout the whole of the period since the date when they are said to have occurred. However, the possibility that the evidence obtained may not ultimately materially assist the applicant's case is not sufficient to prevent there being an arguable case that it will.

21. Finally, I note that insofar as what is sought are medical records, they either will not fall within the scope of "protected confidence" or will be at the margins of a broad interpretation of that expression. Insofar as what is proposed to be so subpoenaed is not a protected confidence then no leave of the court is required.

22. Section 79G requires the court to conduct a preliminary examination of the protected confidence evidence to decide whether leave should be given. For that purpose s 79G(2) has two alternatives, the first is to require anyone who has custody or control of the document recording a protected confidence to produce the document to the court for inspection. The second is to require the counsellor or the principal or other representative of the entity on behalf of whom the counselling was provided to give the court written answers to questions or attend the court for oral examination. In the present case what was sought was the issue of subpoenas to obtain documents. The difficulty is that the application as formulated sought the issue subpoenas which did not adequately identify the respondent in a manner that would be consistent with s 79G(2)(a) or allow compliance with the subpoena to be enforced.

23. The first subpoena was said to be to "the Secretary of Service Assisting Male Survivors of Sexual Assault (SAMSSA) Canberra". A post office box and email address was identified. The court was asked to infer that there may be counselling communications in records held by SAMSSA because of references in the Canberra Hospital documents to Complainant 4 receiving counselling from "Rachel Hart" (at 142, 154) or, and from about March 2016 with "Katie Bryant" (at 171). There is no evidence as to whether or not SAMSSA is a legal entity, whether it has a "Secretary" who might properly respond to a subpoena or whether it is a service conducted by another legal entity. As a consequence, I am not satisfied that the court should issue a subpoena in the terms presently formulated. However if there was evidence that a legal entity or identified person did hold records relating to the counselling conducted by the persons referred to above, then it would be appropriate for a subpoena to be issued for the purposes of s 79G.

24. The next subpoena which is sought to be issued is to "The Secretary of Mood Disorders Group Belconnen". An address in Belconnen is given, although it is not clear how this address was identified. There is a reference in the Canberra Hospital records (at 155) to Complainant 4 being "engaged with the Mood [D]isorders [G]roup at Belconnen". No other information is identified about whether or not this is an entity, a government service, non-government service or a social group. Given the minimal references to "the Mood Disorders Group" in the hospital records I am not satisfied that there is presently an arguable case that any documents held by "the Mood Disorders Group" would materially assist the applicant's case in the proceedings. As a consequence, I refuse the application so far as it relates to this subpoena.

25. The next subpoena is to Dr Emma Glanville, a psychiatrist. The address identified on the proposed subpoena is at the Canberra Hospital. It is clear from the Canberra Hospital records that Dr Glanville consulted with Complainant 4 on a number of occasions between February and May 2016. There is no evidence that Dr Glanville ever saw Complainant 4 as a private patient. There is a possibility (and no more than that), that Dr Glanville has some notes in addition to those which were recorded in the Canberra Hospital electronic records.

26. The next subpoena is to Dr Ingrid Butterfield, a psychiatrist. The relevant address is identified as a post office box and an email address. It is unnecessary to determine at present whether this constitutes compliance with the relevant approved form. Dr Butterfield consulted with Complainant 4 between June 2016 and December 2016. There is no evidence that she consulted with Complainant 4 outside the public health system. As with Dr Glanville and Dr Matias, there is a possibility (and no more than that), that Dr Butterfield has some notes in relation to her consultations with Complainant 4 in addition to those which were recorded in the Canberra Hospital electronic records.

27. The next subpoena sought to be issued is to "Manager, City Mental Health". While it is open to identify the recipient of a subpoena by reference to position: see r 6602(2) of the Court Procedures Rules 2006 (ACT), the subpoena must be clear as to who is being subpoenaed. I assume from the references in the Canberra Hospital notes that the recipient of the subpoena is intended to be "the Manager, City Mental Health Team, ACT Health Directorate". There are sufficient references to communications with this organisation within the Canberra Hospital notes to indicate a sufficient prospect that it holds records, relevant at least to the reliability of the complainant's recollection, that a subpoena should be issued. Leave is only necessary to the extent to which counselling communications would be disclosed and to the extent that other records are caught then the subpoena could be issued outside the scope of Div 4.4.3 of the Act.

28. The final subpoena to be issued is a subpoena to Dr May Matias, a psychiatrist who treated Complainant 4 between July 2015 in October 2015. The address identified is at the Canberra Hospital. The position is the same as in relation to the two previous psychiatrists, namely, that there is no evidence that she ever treated Complainant 4 outside the public health system but there is a possibility (and no more than that), that she has some records of her consultations that go beyond the electronic notes recorded in the Canberra Hospital system.

29. The evidence in the Canberra Hospital records is limited to 1 January 2013 until 1 January 2017. Treatment by the three psychiatrists clearly falls within that period. There is no evidence of protected confidences involving SAMSSA outside that period. I am prepared to draw the inference that there are records held by the City Mental Health Team relevant to the question of reliability that extend beyond this period. In relation to the subpoenas, I will limit the period in relation to which they seek documents from 1 January 2013 until 1 January 2017 except in relation to the City Mental Health Team subpoena which may extend up until 1 January 2019.

30. It is necessary to briefly indicate my reasons for admitting into evidence the Canberra Hospital records which are annexed to the affidavit of Mr Walsh dated 27 February 2019. These records contain records of treatment for the psychological condition of Complainant 4 and by reason of the broad definitions I have referred to above are likely to be counselling communications and hence involve protected confidences. The material was obtained by police pursuant to an authority given by Complainant 4. It was served upon the accused as part of the brief. In relation to this material, I am satisfied that the requirements of s 79F(2) are met in relation to the use of that material on the current application. Further, having examined the material, I am satisfied that the public interest in ensuring the accused person in the proceeding is given a fair trial outweighs the public interest in preserving the confidentiality of the protected confidence. In reaching that conclusion I have had particular regard to the fact that the material has already been disclosed, that is significant for the purpose of the present application which in turn may be significant for the accused's conduct of the substantive proceedings, and that there was no objection by Complainant 4 who had authorised the release of the information in the first place. I further had regard to the fact that the material is mainly medical records and psychological treatment records rather than counselling in the more commonly understood use of that term.

(1) Leave is granted for the disclosure of the documents at annexure B to the affidavit of Gregory Alexander Walsh dated 27 February 2019 for the purposes only of the application in proceedings dated 27 February 2019 and that annexure is admitted into evidence.

(2) Upon the application in proceedings dated 27 February 2019 I direct that subpoenas may be issued by the applicant as follows:

(a) "The Secretary of Service Assisting Male Survivors of Sexual Assault": I decline to direct that any subpoena be issued but give liberty to the accused to put on evidence that would demonstrate that there is an appropriate person or entity that might be the subject of a subpoena.

(b) "The Secretary of the Mood Disorders Group Belconnen": I refuse the application in relation to this subpoena.

(c) Dr Emma Glanville, a psychiatrist: I direct that a subpoena may be issued by the accused to Dr Glanville.

(d) Dr Ingrid Butterfield, a psychiatrist: I direct that a subpoena may be issued by the accused to Dr Butterfield.

(e) "Manager, City Mental Health": I direct that a subpoena may be issued by the accused to "The Manager, City Mental Health Team, ACT Health Directorate".

(f) Dr May Matias, a psychiatrist: I direct that a subpoena may be issued by the accused to Dr Matias.

(3) In relation to the subpoenas that may be issued, the period for which documents may be sought is limited to 1 January 2013 until 1 January 2017 except in the case of the subpoena to The City Mental Health Team which may be from 1 January 2013 until 1 January 2019.

(4) The last day for the service of the subpoenas is 6 March 2019. The subpoenas shall be made returnable before me at 9:30am on 15 March 2019.

(5) Each such subpoena must bear an endorsement on its front page "This subpoena is issued for the purposes of s 79G of the Evidence (Miscellaneous Provisions) Act 1991".

I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.