Solicitors:
Mr O'Brien (Solicitor for the protected confider)
Ms Dawson (Solicitor for the Director of Public Prosecutions)
File Number(s): 2021/000455598
[2]
JUDGMENT
HIS HONOUR: This is judgment in relation to the matter of Magenta (a pseudonym).
[3]
Background
The accused has been arraigned and pleaded not guilty to a four count indictment. His trial is to take place on 13 February 2023.
Count 1 and the alternative count 2 alleged forced penile/vaginal intercourse at his apartment in Thredbo in 2005.
Count 3 and the alternative count 4 are said to have taken place in Albury or elsewhere in New South Wales.
It is alleged that while being driven from Mt Bulla in Victoria to Sydney the accused forced the complainant to perform oral sex on him. There is nothing in the three statements of the complainant identifying when in the trip oral sex took place. There is a possibility it occurred in Victoria. It is said that this also occurred in 2005.
The accused's case in relation to count 1 is that he had consensual penile/vaginal sexual intercourse with the complainant and he believed that she was over 16. The accused's case in relation to count 3 is the complainant performed consensual oral sex on him while he was driving the car and he believed the complainant was over 16.
Some time in 2012/2013 the complainant disclosed to her mother while she had been at the event in Mt Bulla two guys who had driven her home had raped her a few times and that they had raped her anally.
In 2015 the complainant participated in four sessions of EMDR with Jacqueline Nugara of Self Directions Clinic, Cremorne.
In 1987 Francine Shapiro was walking in the park when she realised that eye movements appeared to decrease the negative emotion associated with her own distressing memories. She assumed that eye movements had a desensitizing effect and when she experimented with this she found that others also had the same response to eye movements. It became apparent however that eye movements by themselves did not create comprehensive therapeutic effects and so Shapiro added other treatment elements including a cognitive component and developed a standard procedure that she called eye movement desensitization: History of EMDR https://www.emdr.com/history-of-emdr/.
Courts have given consideration to EMDR - see R v Tillett (1995) 38 NSWLR 1; R v McFelin (1985) 2 NZLR 139; R v Jenkyns (1993) 32 NSWLR 712; and R v KG [2001] NSWCCA 510.
On 27 November 2019 the complainant made her first statement. In 2020 the complainant participated in two sessions of EMDR with Dr Sharon Gold at Live Better Psychology, Woy Woy.
On 24 May 2022 the complainant made a second statement disclosing for the first time that she undertook EMDR.
On 1 June 2022 the complainant made a third statement.
By notice of motion supported by an affidavit of Ms Teagan Naidu, the solicitor for the defendant, dated 17 June 2022, the defence sought leave to issue subpoenas on Ms Jacqueline Nugara, Self Directions Clinic Cremorne, and Dr Sharon Gold, Live Better Psychology Woollahra.
On 1 July 2022 I made consent orders pursuant to s 299B(4) of the Criminal Procedure Act 1986 as follows:
Pursuant to s 299B(4) of the Criminal Procedure Act 1986 that Ms Jacqueline Nugara, Self Directions Clinic, produce to the Court:
(i) Records, notes and documents relating to consultations with KR, date of birth 20 December 1990, during 2015;
(ii) Pursuant to s 299B(4) of the Criminal Procedure Act that Dr Sharon Gold, Live Better Psychology, produce to the Court:
(i) Records, notes and documents relating to consultations with KR, date of birth 20 December 1990, during 2020.
The complainant in these matters is a principal protected confider as defined in s 295 of the Act, by virtue of s 299A of the Act she had standing and a right to appear in relation to the determination of issues of the production or adducing of any material that may be subject to sexual assault communications privilege pursuant to s 298(2)(m)(3) of the Act. She is represented by Mr Peter O'Brien.
After some delay material from the following was produced pursuant to s 299B(4) order. Dr Sharon Gold, Live Better Psychology, produced 1 September 2022; Ms Jacqueline Nugara, Self Directions Clinic produced 30 August 2022.
Leave of the Court is required to issue and compel production of the material produced by either Ms Jacqueline Nugara or Dr Sharon Gold and also to adduce any evidence that is produced with leave.
S 298(1) provides:
"Except with leave of the Court a person cannot seek to compel (whether by subpoena or any other procedure) any other person produce a document recording a protected confidence in or in connection with any criminal proceedings".
[4]
The Test
The defence must satisfy the Court that the material sought may be both relevant and may have legitimate forensic purpose. It must be on the cards that the subpoenaed material sought may materially assist in the determination of the case: R v Saleam [1999] NSWCCA 86; AG for NSW v Chidgey [2008] NSWCCA 65.
[5]
The Material
Mr O'Brien has reviewed the materials. I agree with his observations of Ms Nugara's materials that they are densely scripted handwritten notes and extremely hard to read and decipher.
Mr O'Brien in his written submissions has highlighted what he terms "notes that might have some legitimate forensic purpose". I have reviewed those materials.
The materials appear to be relevant. Let me give two short examples.
On p 6 the complainant expresses anger that she cannot remember everything and she is trying to remember. At p 10 she gives a description between lines 24 to 38 as to what happened.
Mr O'Brien has gone through the same process with Dr Gold and has highlighted what he terms notes that might have some legitimate forensic purpose. I have reviewed those materials. The materials appear to be relevant.
Although the accused admits physical acts occurred there are two issues. Firstly, was the sexual intercourse without consent; and secondly his belief as to the age of the complainant.
The complainant asserts that the sexual intercourse was without her consent. As she is a single witness the jury will be required to make an assessment of her accuracy and reliability. In the notes she discusses memory and what happened. Those matters go directly to accuracy and reliability.
I am satisfied that the entries identified by Mr O'Brien have a legitimate forensic purpose.
[6]
The test for determining the issue of leave
In determining whether leave should be granted the Court is required under s 299B(1) to balance:
(a) Whether the document or evidence will have substantive probative value; and
(b) Whether any other document or evidence concerning the evidence is available; and
(c) The public interest in preserving the confidentiality of the protected confidence in the protection of the protected confider from harm is substantially outweighed by the public interest in admitting the document or evidence of substantial probative value.
[7]
Mr O'Brien's submissions
Mr O'Brien submits that the materials do not have substantial probative value for the following reasons:
(a) There is no suggestion EMDR has produced or revived the recollection of memory;
(b) The notes appear to recite impact rather than a detailed narrative;
(c) The material produced by Ms Nugara predates the complaint to the police but postdates the complaint to the mother;
(d) The Dr Gold material was generated after a statement was made and is not inconsistent with that account.
[8]
Consideration
The mother in her statement said of complaint:
"I do not recall the exact conversation however K told me that while she as at the event in Mt Bulla that two guys had raped her a few times. She told me that they had raped her anally. She told me it was the guys who drove her home from the event in Mt Bulla".
This complaint seems to be a combination of the allegations asserted in count 1 which took place at Thredbo and count 3 alleged to have occurred on the drive from Mt Bulla to Sydney only involving the accused.
It is after this complaint that the complainant participated in four sessions of EMDR and then makes her first statement. The first statement identifies two separate times of offending, contrary to the complaint made to the mother. Did the version given to the police compared to the mother come about as a result of the EMDR treatment?
I accept Mr Fernandez's submissions that the issue of EMDR is important as both a pretrial issue (because of a potential for an application for exclusion of the evidence pursuant to s 137 of the Evidence Act) as well as potential cross-examination as to credibility and reliability and evidence in the defence case.
I note the defence are likely to call Dr Roberts to give evidence in both stages, if an application under 137 is to be made.
The third statement made 1 June 2022 provides further conversation on the part of the complainant at the time of the alleged offending which is not contained in her first statement. Has the memory of this conversation been revived as a result of the two sessions undertaken with Dr Gold, which occurred after the first statement and before the third statement?
I reject the submission from Mr O'Brien that:
"There is no suggestion in the material that her evidence at this stage represented in her statement to police dated 27 November 2019 has been obtained by or produced by EMDR".
I also reject Mr O'Brien's submission that the notes appear to recite impact rather than a detailed narrative.
At p 10, lines 24 to 36, the complainant speaks of lack of memory and having blacked out. She then speaks of dreams and "wondering if I did get raped". She speaks of dreaming they were pulling down her pants and one penetrated her and the other one said "fuck what are you doing?" "My undies were ripped, the two cops were" - the next word is indecipherable, I could not read it - "that's all the shit I know. I feel anger towards the fucking police for screwing things. I thought they act on your behalf if you are raped". "Sounds like you don't feel like they do." "No".
This is a narrative which is relevant to the reliability and credibility of the complainant.
I conclude that the highlighted passages of the notes have substantial probative value. The critical issue in a trial is the complainant's credibility and reliability. One aspect of this is the fact that the complainant had EMDR treatment. It is a relevant matter pretrial if made and in the defence case with the proposed calling of Dr Roberts.
[9]
The public interest in preserving the confidentiality of protected confidences and protecting the principal protected confider from harm
The Court must embark on the balancing test pursuant to s 299D(1)(c), namely that the public interest in preserving the confidentiality of the protected confidences in protecting the protected confider from harm is substantially outweighed by the public interest in seeking access to protected confidences.
The nature of the balancing test was outlined in KS v Veitch (No 2) [2012] NSWCCA 266 at 34 and 78. See also PPC v Williams [2013] NSWCCA 286 at 26:
"...the test to be applied under s 299D in the regulation of the production of documents and adducing of the evidence is the same in both cases for the purpose of assessing the balance between the two competing public interest as required by s 299D(1)(c). It is to be assumed that the information contained in the document will in fact be admitted into evidence in one form or another."
Pursuant to s 299D(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 the 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 upon 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 the 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 on a reasonable expectation of privacy.
Pursuant to s 299D(3) Mr O'Brien has filed a confidential statement of the complainant attached to his affidavit affirmed on 3 November 2022. I have read the statement and the concerns raised by the complainant.
The complainant had two sessions with Dr Gold in 2020. There does not appear to be an ongoing relationship with Dr Gold. The same can be said of Ms Nugara who the complainant saw in 2015 and has not seen since.
The other matters of concern dealing with non-EMDR matters would not be disclosed and redaction would ensure that this would not happen.
Mr O'Brien submits that the balancing in this matter is arguably in favour of protecting the confidentiality of the records of the protected confider. He submits that the public interest in preserving the confidentiality of the protected confidence in protecting the protected confider from harm is considerable and not substantially outweighed by the public interest in seeking access to protected confidences.
Mr Fernandez submits that the complainant disclosed to the accused she was having counselling and therapy and her contacting him was part of her therapy.
His argument is akin to a wavier of confidentiality. He relies upon Instagram messages sent on 16 April 2017; 3 March 2020; and a pretext telephone call on 11 April 2020. He submits that by her actions in disclosing the fact of the protected confidence to the accused it is unlikely she will suffer harm or the harm is mitigated because of her disclosures.
I reject this global argument. The material needs to be looked at line by line as Mr O'Brien and I have done as to what harm it would cause the complainant. Following that procedure there may be some merits to his argument that granting access to the materials in this case will not discourage victims of sexual offences to seek counselling and to receive effective counselling.
After considering the matters set out in s 299D(2) and in particular the confidential statement of the complainant I am satisfied on balance that the public interest in preserving the confidentiality of protected confidence in protecting the principal protected confider from harm is not substantially outweighed by the public interest in admitting into evidence information or the contents of a document of substantial probative value.
What is to be released is the highlighted parts of the documents identified in paras 22 and 24 of Mr O'Brien's outline of submissions for the protected confider. All other passages are to be redacted.
The materials once redacted are to be limited to the lawyers only. The produced materials are to be destroyed at the conclusion of the accused's trial.
[10]
Amendments
29 May 2024 - Amended on 29/5/24 to refer to accused by pseudonym (by consent)
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Decision last updated: 29 May 2024