HER HONOUR: The accused is before the Court facing trial on 13 counts of sexual assault against the named complainant. Counts 1 to 10 inclusive in the indictment are offences contrary to s 61E(1), then in force, alleging that on ten separate occasions over a period between 1 January 82 and 24 December 83, that is over a period of two years, the accused indecently assaulted the named complainant.
There is a further element asserted that she was under the age of 16. Whether or not that is necessary is to be dealt with in due course and is not a matter necessary for determination for the purposes of this issue before me. Each of these charges, counts 1 to 10, is in exactly the same terms and covers a time period when the complainant was aged between seven and nine, she having been born on 23 May 1974.
Each of those counts alleges the offences occurred at Rozelle. Count 11 is a charge contrary to s 61E(2) of the Crimes Act of committing an act of indecency in the presence of the complainant who was under the age of 16. This offence is alleged to have occurred between 25 March 83 and 24 December 83 at Rozelle when the complainant was aged between eight and nine. Counts 12 and 13 are charges that the accused had carnal knowledge of the complainant when she was under ten. These are charges contrary to s 67 of the Crimes Act then in force. Count 12 is alleged to have occurred at Rozelle between 25 March and 24 March 83 when the complainant was eight or nine and count 13 is alleged to have occurred at Drummoyne on 24 December 1983 when the complainant was nine.
As I understand it, the complainant made a formal complaint to police about these offences in May 2011. The accused was questioned by police on 13 December 2011, he denied the allegations but on legal advice declined to make any further statement. It is not clear on the material before me when he was charged with these offences.
Three subpoenas were issued on behalf of the accused on about 23 April 2014 from this Court's criminal registry in Sydney. They appear to have been issued during preparation for this trial, which commenced before me on 24 June, that is, two days ago. They were to three separate hospitals, cast in fairly broad terms, but not unusually so for subpoenas seeking hospital records. They were issued to Cumberland Hospital, Westmead, Sydney South Pacific Private Hospital, Curl Curl and Bowral Hospital.
None of them seeks access to sexual assault counselling in the notes as such and there is nothing before me on this application to indicate that there was any information available to either the accused's legal representatives, or for that matter to the Crown, about the existence of or identity of any specific sexual assault counselling involving the complainant being undertaken at the time these subpoenas were issued. The subpoenas sought the medical files of the complainant generally but in each case for a period of specific admissions.
For Cumberland Hospital this was from 1 June 2006 to the present. For the Sydney South Pacific Private Hospital that was from 1 January 2010 to the present and for Bowral Hospital that was for a nominated period in 2013.
There is nothing to suggest that the accused's legal representatives expected to find anything in the nature of specific sexual assault counselling from any of these. They were aware, I accept, in general terms that the admissions to these hospitals had been for other apparently non related reasons, in particular they were aware that the admission to Sydney South Pacific Hospital, which is a drug and alcohol rehabilitation hospital, was a self referral by the complainant made in September 2010 when she was seeking to be involved in a 12 Step alcohol rehabilitation program following her being involved in a car accident in April 2010, being charged with an offence of DUI, being dealt with in the Local Court and then appealing to the District Court.
They were aware that in those District Court proceedings a report had been tendered under the hand of Dr Ben Teo, psychiatrist, setting out some history including references to admissions to Cumberland Hospital for reasons not specifically connected with any sexual assault allegations and also references to the treatment program at Sydney South Pacific Hospital.
There is nothing in the terms of the subpoenas nor in the circumstances in which the fact of these admissions became known which, on their face, would have alerted anyone to the possibility that protected confidences might be claimed. It was known to the accused's legal representatives that in relation to the admissions to Cumberland and Sydney South Pacific Hospital, these occurred well before the allegations were made by the complainant in relation to the accused.
It would appear that each institution produced a bundle of documents in response to the subpoena issued to it and no claims were made by any of the hospitals. Although the file does not assist me to determine this, it would appear that subpoenas were returned in the normal way and access was granted to them in the normal way, including an opportunity for photocopying of the documents.
I am informed that once the Crown Prosecutor started to read the documents, it raised in his mind the possibility that at least some of those documents in the files contained counselling communications as defined in the Criminal Procedure Act, 1986 which would amount to protected confidences pursuant to the relevant provisions of that Act. The documents and photocopies were thus returned to the Court, a solicitor was appointed to appear for the complainant, the protected confider, and the accused's call for access to the documents was renewed when the trial came before me two days ago, on Tuesday 24 June 2014.
The subpoenas were obviously issued without leave. Section 298 of the Criminal Procedure Act 1986 provides that in criminal proceedings a subpoena which seeks the production of documents which records a protected confidence cannot be issued without leave of the Court and nor can there be production of those documents.
Production in this section appears to mean access to parties to subpoenaed documents, not merely production of documents to the Court for consideration of other applications. Whilst the terms of s 298(1) would seem to be mandatory and there could easily be a valid view that any subpoena issued without leave should simply be set aside as ultra vires, in fact with respect I prefer the approach of the Court of Criminal Appeal in KS v Veitch (No 2) unreported decision of the New South Wales CCA at 266 where Basten J in similar circumstances determined that although the subpoena was issued irregularly, and because the tests for granting access are the same as the tests for granting leave to issue a subpoena, that it was open to the trial court to disregard the irregularity when determining whether or not the accused could have access to the documents. With respect I propose to follow that course.
Section 298(2) then provides that access can only be given to documents, which record a protected confidence, with leave of the Court, in criminal proceedings. That is the issue here for my determination, namely whether or not the accused, and by extension the Crown, should be granted leave to access any of the documents produced by the hospitals in response to the subpoenas.
It is first necessary to determine exactly what these documents contain and therefore whether they fall within the provisions of Part 5 Division 2 of the Criminal Procedure Act, 1986 entitled,
"Sexual Assault Communications Privilege".
As I said the complainant has claimed a sexual assault communications privilege over the entirety of the material produced in response to each of the three subpoenas and she has been represented by a solicitor on the return of subpoenas and the subsequent argument.
The solicitor has advised the Court that in his view all of the material produced fits the description of a counselling communication. In order to meet the anticipated application for leave to access the documents that solicitor has gone through the three files and also conferred with counsel for the accused in relation to the forensic purpose identified by him. As a result the solicitor for the complainant has placed yellow tabs on various parts of those files in which he is of the view that the material at those pages may have some probative value, in light of those discussions with counsel for the accused, and having some knowledge of the subject matter of the trial.
For the purposes of this argument I have also read all of the contents of these three bundles and myself placed orange tabs on some of the documents, which in my view may have some probative value both for the accused and the Crown in relation to the issues, which I anticipate, are likely to arise in this trial. To a large extent the orange tabs that I have placed on the file correspond with those placed by the solicitor for the complainant, but not entirely.
Just like Berman DCJ in R v Markarian [2012] NSWDC 197 I have spent some considerable time doing that, particularly as many of the documents are in handwriting, some on their face are hard to categorise as to their purpose or reason for creation, the authors of many are either unidentified or cannot be ascertained because there is an illegible signature, and in any event even where known, the person's occupation is not always provided.
Also just like Berman DCJ I am conscious that there is a vast amount of irrelevant material which is always likely to be the case in a normal hospital file, containing as it does documents like drug charts, hourly observation notes and the like. I also have to make my own assessment of whether or not a particular document is not only a counselling communication but is also likely to have the necessary probative value, at the beginning of the trial, without any evidence having been called, and in particular without hearing the evidence of the complainant, and to some extent therefore second-guessing the full extent of the issues likely to arise.
As I perceive it though, the issues which are likely to arise, having had access to these hospital records which would be likely to have at least some probative value, in particular relate to issues of the complainant's credibility, reliability and accuracy as a witness. These allegations are a little more than 30 years old. There is, as I understand it, no supportive evidence of the complainant's allegations. There is yet to be an argument in relation to the admissibility of certain evidence that broadly falls within the description of complaint evidence, but I do not as yet know much of the details of that, and that of which I am aware it seems to me is to an extent vague and lacks the sort of specificity as to time, which would make it unlikely that these could be relied on as complaint evidence as such. It is more likely that at most they would be admissible pursuant to s 108(3) of the Evidence Act.
As I have said however that is an argument yet to be had. Even that may be subject to further argument it seems to me. if there are significant inconsistencies within those versions, so that it could never properly be used to re-establish credit.
The Crown has tendered a written version of the opening he would propose to give to the jury in this trial and from that it is clear that the Crown accepts that its case is almost entirely dependent on the evidence of the complainant, who must be accepted, as to the elements for each of the offences, beyond reasonable doubt, after careful scrutiny, if there are to be convictions in relation to any of these charges.
As such therefore her credibility, accuracy and reliability are pivotal to this trial. I have been made aware on behalf of the accused that in relation to three of the charges there will be evidence called from which it will be argued that the specific acts alleged by the complainant are a physical impossibility because of the place in which the events are said to have occurred and simply did not occur as to one because the surrounding circumstances alleged simply did not occur. As I understand it there will be other evidence, at least as to three counts, which calls into question, at the very least, the complainant's accuracy and reliability and I am told her credibility will be put in issue as well. There is a degree of overlap in relation to each of the charges and so the issues of credibility, reliability and accuracy are vital for all counts, not just those three where is specific contrary evidence.
Having then determined to allow the subpoenas to be called on, even though issued without leave, I must then decide a number of things, given that the complainant has claimed privilege over the entirety of the three files.
First, are there, in fact, protected confidences reported in any of the documents? Second, if not, should access be given to the files, or parts of them, in any event, on an assessment of the likely relevance of those and therefore whether or not a legitimate forensic purpose can otherwise be established? Third, if so, should leave be granted for access to the documents?
For the purpose of these considerations it is necessary to look to the provisions of this extremely poor legislation.
A "protected confidence" is defined in s 296(1) of the Criminal Procedure Act, 1986 as meaning a counselling communication that is made by, to or about a victim or alleged victim of a sexual assault offence.
S296 (2) provides that something can be a protected confidence even if it is a counselling communication made before any allegation of a sexual assault and also even if not made in connection with a sexual assault offence.
S296(4) defines "Counselling communication" as a communication:
1. 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
2. Made in confidence to or about the counselled person by the counsellor in the course of that counselling, or
3. Made in confidence about the counselled person by a counsellor or 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
4. 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.
"Counsellor" is defined for the purposes of S296 in this way:
S296 (5) A person counsels another person if:
1. The person has undertaken training or study or has experience that is relevant to the process of counselling persons who have suffered harm, and
2. The person:
1. Listens to and gives verbal or other support or encouragement to the other person, or
2. Advises, gives therapy to or treats the other person,
whether or not for fee or reward.
The first task then is to determine, are there counselling communications recorded in these hospital notes, which become protected confidences pursuant to those provisions?
As I have said I have read all of these notes, as I must do, but I am assisted by a degree of practicality employed by both counsel for the accused and the solicitor for the complainant. There are large portions of all files to which the accused's counsel does not seek access because he acknowledges that they are not likely to be relevant and thus not of any probative value.
I will deal first of all with the subpoena to Bowral Hospital, which is the matter I dealt with yesterday but now by way of formal findings.
As advised yesterday, having read that file relating to two admissions in 2013, I characterise the documents on the whole as being general hospital records, relating to admissions not directly connected with any allegation of sexual assault, for very short periods only and comprising largely triage nurse notes, ward nurse observations, drug charts and the like.
They may well fall within the broad definition of counselling communications if I were to infer that nurses in a general hospital come within the definition of counsellor, but it seems to me that it's not necessary for me to decide that. Having read the documents, as indicated yesterday, it appears to me there is nothing in that file, whether characterised as counselling communication or not, which could have any probative value in relation to the identified issues in this trial, let alone substantive probative value.
Counsel for the accused advised yesterday that he was content with that approach and I confirm the order made yesterday that there be no access granted to any documents in those subpoenaed documents from Bowral Hospital.
As to the other two bundles, as Berman DCJ remarked in Markarian's case, there are always going to be large quantities of material in hospital files that are irrelevant. Equally, it seems to me that there are always likely to be quantities of material in general hospital files which could never fall within the definition of counselling communications, and as such it appears to me unhelpful that a claim for privilege is made in relation to the entirety of a hospital file. Into that category it seems to me falls, for example, drug charts which, in my view, by no stretch of the definition in this Act, could be called a counselling communications, thus attracting the privilege.
However, having read all of the documents in those two other bundles, as would no doubt be expected from hospital files, the vast bulk of both of these seem to be a standard hospital records. They include drug charts, nurse's ward observations, ward nurses' notes and the like. Without needing to decide whether or not these, in fact, amount to counselling communications, they are not either likely to be probative of any of the issues identified and advised to me following consultation between the solicitor for the complainant and counsel for the accused and thus there could be no legitimate forensic purpose demonstrated for those parts of the files.
As confirmed yesterday, counsel for the accused has agreed that, for the purpose of this argument, my attention should be directed only to those documents on which either yellow or orange tabs have been placed either by me or the solicitor for the complainant and as I understand it, is content to accept a ruling that the balance of all documents in those two files, even if they amount to counselling communications, and I'm far from satisfied that they all do, nonetheless are not relevant and thus he does not seek access to those.
I will then concentrate on those documents, which are tabbed in that way. First of all the documents, which appear in the Cumberland Hospital files cover two admissions. The first is an admission on 25 June 2008, the second is an admission on 24 June 2010. As the documents are produced the notes work from the most recent admission backwards so I will therefore deal with the second admission first.
The first yellow tab placed there by the solicitor for the complainant appears to be a discharge summary written on 30 June, apparently in relation to a discharge on 20 June and apparently written by a psychiatrist. On its face it contains material about interaction between the complainant and a number of people, all of whom seem to have psychiatric or psychological qualifications. It must be noted, of course, that Cumberland Hospital is a psychiatric hospital.
By inference they are counsellors within the terms of the definition in the Act. It seems to me that it probably falls within the definition of counselling communication or in fact a summary of things that happened during that admission but I do not propose to grant access to that document because even if it is a counselling communication there is nothing in it in my view which could be said to have substantial probative value in relation to the issues identified. It is not necessary, in my view, for a balancing exercise to be undertaken.
The first orange tab is one placed there by me, which also corresponds with a yellow tab placed by the solicitor for the complainant and is a document referred to as a mental health assessment which, on its face, appears to have occurred sometime following 23 June 2010 at 11.55pm.
All of the sources of the information in that document appear to have come either from or about the complainant. This seems to have been signed by a person called a CMO, which I accept is some form of medical officer. As I have said Cumberland Hospital is a psychiatric hospital. By inference I accept that it is possible that such a person, simply by virtue of their office there, falls within the definition of counsellor for the purposes of the Act.
The reason for the complainant's admission to the hospital on this occasion falls within the definition of harm, but on its face has no connection at all with any sexual assault, more likely than not arising as a result of relationship difficulties. But what is occurring on the face of this document is that the person, whomever he or she might be, is taking a history from the complainant on initial presentation to the hospital during the course of a mental health assessment.
On its face therefore it is a communication, in confidence, between the complainant and this CMO, so on its face it falls within the definition of counselling communication, even though in my view it was never the intention of the legislation that such a broad application apply.
There is a portion of this mental health assessment entitled, "History presenting problem". There is a portion towards the end of that entry which, on its face, appears to have some probative value in relation to the issues to be tried here, including circumstances in which the complainant made allegations about physical abuse by her father, that is the therapeutic circumstances in which that occurred, and also issues in relation to her reliability, based on consistency of complaint. I make that comment about an allegation of physical assault by the complainant's father because I'm aware that this is not a matter solely within the purview of these documents, but appears otherwise in the statements that have been tendered on this application.
As I have said, whilst there is scant evidence about the person who took this history, I accept by inference that it is likely to be a counselling communication, and if leave is to be granted to it, that can only occur in accordance with the provisions of s 299D, which I will come to in due course. However, it is a document which I accept is a counselling communication and about which I must make a decision.
Some of the following yellow tabs for that admission are on their face by inference also counselling communications, but either, in my view, amount to a repetition of the material which appears in the mental health assessment, which I will address in due course on the question of leave, or do not, on their face, raise any other issues of probative value.
A document which I have called the fourth yellow tab, but which I am conscious is probably about six, but in any event is a tab which appears to be a drug chart only. In my view, that is not a counselling communication, but neither is there any probative value. In any event, I am informed on behalf of the accused as to the only potentially relevant drug appearing in that charge, namely Effexor, that that information or evidence in relation to that drug and its connection with the complainant is available from another source, and as such, for that combinations of reasons, would not grant access either.
As to the first admission, in summary, there is one document which in my view clearly falls into the definition of counselling communication for which the privilege can be claimed, and I will be required to make a determination pursuant to s 299D as to whether or not leave will be granted.
As to the second admission, dated 25 June 2008, the first yellow tab attached by the complainant, appeared to be an admission or referral document. It is hard to know who is the author of that document, but as I keep saying, Cumberland Hospital is a psychiatric hospital and on its face it is signed by a person described as a registrar, which probably means that is a person with medical qualifications. It is a real shame that a judge making a determination on something as important as this, particularly in relation to two charges, which if proved beyond reasonable doubt carry a maximum of life imprisonment, has to guess about these sorts of details but nonetheless, it seems to be that that person is a person with medical qualifications if he or she is properly described as a registrar.
For the same reasons that I gave in relation to the documents for the first admission, this is probably also a counselling communication as defined in the Act, according to the very wide definition, although it too is clearly a history given on admission to a hospital for a problem which, as described by the complainant, has no connection with any allegation of sexual assault.
There is, however, in my view, nothing in either of those two pages, tabbed by the solicitor for the complainant, which would ever be probative of any of the issues which I have been advised, are considered relevant by counsel for the accused, or for myself, from what I can see from the statements tendered on this application.
For those reasons I will not be granting access to those documents.
There is another document in relation to this admission which seems to be the fourth yellow tab. It is hard to know how to describe it. It is under a heading which is illegible, but more probably than not is the name of a nurse because the letters PRN appear at the end of the entry. There is an entry dated 25 June 2008 apparently undertaken at the hospital whilst in the Hainsworth ward. It is in the nature of a history given and recorded by that nurse, including the personal history apparently given by the complainant in confidence. There are also observations and impressions of the author recorded.
As a nurse in a psychiatric hospital, I am prepared to accept that she is likely to fall within the definition of counsellor. That is by inference only because it is in the absence of any other evidence whatsoever. This then, it seems to me, is capable of being properly described as a counselling communication, although only in its broadest sense. There are portions in this entry, which in my view are probative to issues, which are relevant in this trial, and in particular, in relation to issues of credibility, reliability, accuracy and consistency in relation to the complainant.
That is also, in those circumstances, a matter about which I must make a determination under s 299D as to whether or not leave should be granted to access that document.
The last yellow tab in relation to this first admission in time appears to be ward notes from 9.30pm on 25 June 2008 to just after midday on 27 June. As far as I can tell they appear to be individual nursing entries. The identity of the nurses cannot be ascertained, but they are all nurses in the psychiatric hospital, so inferentially, likely to fall within the definition of counsellor.
Some of them are observations and some of them are records of things apparently said by the complainant. Whether or not they are all counselling communications is far from clear, and more likely than not, in my view, they are not, but I am prepared to accept for the purposes of this argument that they may be.
There does not appear to be anything in those notes which fall within the categories identified, following discussions between counsel for the accused and solicitor for the complainant, as being issues of perceived probative value, and even if so, nothing which would ever reach the level of substantive probative value. I will not be granting access to those.
In summary, that means that there are two documents in the Cumberland Hospital notes which, following my findings, require determination by me as to whether or not leave should be granted pursuant to s 299D.
Before turning to that I will deal with the South Pacific Private Hospital notes in the same way.
First of all, in general terms, things that emerge from the records produced by South Pacific Private Hospital is that these documents and records exist at all because the complainant referred herself to this hospital, which is a rehabilitation hospital, for the purposes of completing a 12 Step Program to deal with alcoholism, in the context of being charged with an offence of DUI, having had the matter dealt with in the Local Court, then appealing to the District Court, and in circumstances where she engaged Dr Ben Teo, psychiatrist, to provide a report, and from what I can tell, also provide treatment. The claim on behalf of the complainant here is that is everything produced from this hospital is in fact a counselling communication, that is a communication between the complainant and a counsellor, namely a person who is trained or experienced in counselling a person in relation to harm and providing treatment or advice in relation to that.
I find it difficult, as I have said, to accept that such a blanket claim in relation to these or any general hospital file could properly be made. Further, this is not in the same category as, for example, the earlier admission to Cumberland Hospital, a psychiatric hospital, and in circumstances where on the face of those documents they were admissions clearly for harms, as defined in the Act, and she was treated for harm there.
"Harm" is defined in the Act as including actual physical bodily harm, financial loss, stress or shock, damage to reputation or emotional or psychological harm. To be a counselling communication it has to be a confidence given to a counsellor in the course of that person's providing counselling in relation to any harm they may have suffered. Some of the entries in the records of this hospital are from intake officers or similar, who are not people, on the evidence before me, with any form of training or experience in counselling, but whose job it is, by inference, to undertake an administrative task in admitting individuals to this hospital to commence alcoholism rehabilitation.
Even if that were counselling, and I am far from convinced that it can be, the question remains, is this in fact counselling being given by that person in relation to any harm that the complainant may have suffered as that is defined? I do not accept that that is necessarily the case here, or certainly it is not clearly so.
This is a voluntary admission to a rehabilitation hospital by a person who is seeking to achieve abstinence from alcohol use and prevent relapse. Clearly, or at least arguably, conversations with therapists and others during the course of the 12 Step Programs, might well fall into such a category, but I do not accept that what is said to intake assessment officers or triage nurses, or the like, in a situation such as this, falls into the category of counselling communications.
In my view it stretches the definition too far. With respect I do not agree with the construction of this section by Berman, DCJ in the Markarian case and am more inclined to accept the view taken by Marien, DCJ in R v Bruce Russell [2013] NSWDC 129.
In that case, at para 32, Marien, DCJ looked at the role of those about whom it could not possibly be inferred that they were counsellors, which in that case it was an ambulance officer. In the matter before me, as I have said, they are in the category of administrative intake officers or perhaps triage nurses. It does not seem to be open to infer, in the absence of any evidence, that these people in these roles fall within the definition of counsellor and as such, any document which records conversations between them and the complainant, do not, in my view, become counselling communications which attract privilege.
Therefore looking at the documents produced by South Pacific Private Hospital it seems to me there are two sets of documents which fall into that category and to which I will grant access without leave being required because in my view they do not amount to counselling communications. One of those documents is entitled "Pre-Admission Assessment", a two-page document apparently created on 8 March 2010 at 1.30pm under the hand of a person whose signature cannot be deciphered but who is referred to as "an assessing officer".
The second of those documents is a three page double sided document which does not have a heading but which on the bottom is referred to as "Pre-Admission assessment Form" and which is handwritten, and which on the face of it appears to form the basis for the typed pre-admission assessment document to which I have already referred.
In my view, neither of these documents amounts to counselling communications as defined in the Act and therefore leave is not required for access to these documents. There is material in there which in my view is probative and there has been no claim in any event that a legitimate forensic purpose is not demonstrated for access to these documents and as such I propose to grant access to these documents without the need for leave on the basis of those findings.
There is also a clinical discharge summary under the hand of Dr Teo for an admission, which on its face is from 8 October to 26 November 2011, that is, after the 12 Step residential admission. It would appear to relate to day admissions following the earlier residential rehabilitation program.
Most of these entries in my view would not qualify as counselling communications given that they include drug charts, observations, and the like. Some of them would amount to counselling communications and some parts of the history recorded may be probative but these histories, and for that matter the material in the discharge summary prepared and signed, or at least signed by Dr Teo for this day program admission appears just to be a repeat of the earlier admission documents, that is, of documents relating to the earlier residential admission and so either because, even though they are not caught by privilege, they are not relevant or because even if they're otherwise potentially probative there is evidence elsewhere, I would not grant access to those documents.
Other documents tagged by the complainant's solicitor in yellow and relating to the September admission to the South Pacific Private Hospital may or may not, in my view, be counselling communications. They include the nursing admission process checklist which itself includes what would either be an irrelevant prescription drug history or, as I have already said, contains information which I am informed is already known to the accused's counsel or otherwise be irrelevant to the issues identified as probative between counsel for the complainant and the accused's counsel. It seems to me that except for one document, which I am now about to identify, that is the bulk of the other documents tagged in yellow by the solicitor for the complainant. For those reasons, acknowledging that I do not necessarily purport to make a formal finding as to whether or not they in fact all amount to counselling communications, I will not in any event grant access to them.
There remains one document in relation to this admission in September 2010, which does require analysis. It is headed,
"Trauma review by primary therapist".
On the face of it, it appears to have been created as part of the record of progress by the complainant through the 12 Step program. On the face of it, it is prepared by a person described as the primary therapist who elsewhere is named in the file and on the face of it, without further, I am prepared to infer that that person is a counsellor within the definition of the Act.
The document itself records information apparently given in confidence by the complainant to the primary therapist about specific harms. That is said to be the whole purpose of this document, namely to record specific traumas, it being a trauma review. For that combination of reasons I accept that it is a counselling communication and as such attracts the privilege. Again just as for the other two documents in the Cumberland Hospital notes I must make a determination under 299D as to whether or not leave ought to be granted.
The terms of s 299D are broad:
S299D (1) The court cannot grant an application for leave under this Division unless the court is satisfied that:
1. 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
2. Other documents or evidence concerning the matters to which the protected confidence relates are not available, and
3. 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.
S299D (1)(c) is probably the most significant part of that section in terms of conducting the necessary balancing exercise.
Section 299D(2) sets out matters to be taken into account, which is not meant to be an exhaustive list. I do not propose to read onto the record the provisions of that subsection, but will address them in due course.
Section 299D(3) allows for a confidential statement to be made by the protected confider specifying the harm the confider is likely to suffer if the application for leave is granted, to be taken into account by the court in determining the application for leave. No such statement has been tendered on this application.
In relation to the three documents to which this consideration applies, namely the two that I have referred to in the Cumberland notes and this document headed "Trauma review", I have come to the conclusion that, particularly taken together with other evidence which I accept is likely to be tendered, that these documents have substantial probative value. The substantial probative value goes to the issue which I have described as pivotal to the Crown's case, namely the reliability, accuracy and credibility of the complainant, in relation to which there can be no Crown case unless that is accepted beyond reasonable doubt.
So far as I understand it on the material before me there are no other documents or evidence, which concerns the matters, referred to in these documents, or protected confidences contained in these documents.
In my view the public interest in preserving the confidentiality of these protected confidences is outweighed by the substantial probative value of these documents. I accept that there is a public interest in preserving the confidentiality of protected confidences. It seems to me that S299D (2) sets out to some extent what that public interest is, namely, to encourage victims of sexual offences to seek counselling, to ensure that that counselling is effective, to ensure that they receive this counselling, to ensure that any relationship between those people and their counsellor is not undermined and to ensure a reasonable expectation of privacy on the part of any such person.
I also accept that there is a public interest in protecting a protected confider from any harm that might occur as a result of the disclosure of any protected confidences. I have no evidence before me of any such harm likely to occur to the complainant as a result of these confidences being disclosed.
Further, there is in fact, no evidence before me that there is any ongoing counselling involving the complainant in relation to these alleged sexual assaults. One of the matters that I ought take into account in determining the competing public interests is to ensure the viability and effectiveness of any such counselling, with a clear inference that if any such disclosure would undermine that counselling, then it is not in the public interest to do so. In this case there is no evidence that any such counselling is being undertaken or, for that matter, ever has been undertaken.
The provisions of S299D (2), in my view, make it quite clear that the purpose of this legislation is, as I have said, that is to protect those who allege sexual assault from intrusion during the course of sexual assault counselling and in the context of criminal proceedings and to ensure that the counselling will be effective and not be undermined.
As I have said in my view the material here, in this case, is substantially probative because it is capable of going to the heart of the Crown's case here, namely the credibility, reliability and accuracy of the complainant. It is substantially probative of that in my view because it goes to those very issues, it is not available from any other source and there is no evidence of any harm, either of the type referred to in the section or at all, that might befall the complainant as a result of disclosure nor any evidence indicating a public interest that would outweigh the public interest in ensuring a fair trial for an accused, in particular for serious offences which carry a maximum penalty of life imprisonment as to two of them, if there is a conviction.
For those reasons I propose to grant access pursuant to s 299D of the Criminal Procedure Act, 1986 to three portions of these documents, two that I have identified from the Cumberland Hospital notes and one from the Sydney South Pacific Hospital notes.
As I understand it that then deals with all of the documents produced on subpoena and in summary there are five groups of documents, three to which leave has been granted and two in relation to which, on my finding, they do not fall within the relevant provisions of the Criminal Procedure Act, 1986.
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Decision last updated: 25 August 2015