R v Malone

Copies of records relating to a claim for financial assistance made to the victims services scheme by or on behalf of (the complainant), date of birth XXXX, relating to alleged offences committed upon her by Kevin Malone, date of birth XXXX, as follows: any application for financial assistance made for or on behalf of (the complainant); any document which contains a record of an account of the alleged offences made by (the complainant); but not including any protected confidence as defined in s 79 of the Evidence (Miscellaneous Provisions) Act 1991.

6. There was a further reduction, on 8 April 2022, in the scope of the documents sought. The documents now being sought are:

Copies of records relating to a claim for financial assistance made to the victims services scheme by or on behalf of (the complainant), date of birth XXXX, relating to alleged offences committed upon her by Kevin Malone, date of birth XXXX, as follows: Pages 1 and 2, sections 1, 2, 6, 7 and 9 of the Primary Victim Application Form made by or on behalf of (the complainant), with the exception of residential address, phone numbers and emails; The ACT Financial Assistance Scheme Extension of Time Application Form lodged by or on behalf of (the complainant).

7. Notwithstanding these refinements the Commissioner maintained her objection to the production of the documents. The Commissioner went a little further and sought leave, which was granted, to file in Court an application in proceeding requesting that the subpoena be set aside pursuant to r 6604 of the Court Procedures Rules 2006 (ACT) (the Rules).

8. As a matter of formality I think it necessary for me to give leave to the respondent to amend the subpoena to reflect the description of the documents being sought, as described above.

9. Rule 6604 permits a court to set aside a subpoena “completely or partly, or grant other relief in relation to it”.

10. The Commissioner’s application was made on two bases: (a) The Commissioner had chosen not to exercise her discretion to produce the requested documents and could not be compelled to do so.

(b) The documents were a “protected confidence” pursuant to s 126B of the Evidence Act 2011 (ACT) and the harm that would be caused by production outweighed the desirability of the documents being made available to the respondent.

11. The Commissioner’s application was supported by an affidavit of the Commissioner, Ms Heidi Yates, affirmed on 7 April 2022.

12. By way of background, in the course of their pre-trial evidence both the complainant and her mother were cross-examined about an application made to the Commissioner, by the complainant, for compensation arising from the crimes allegedly committed upon the complainant by the respondent.

13. The apparently obvious motive behind the cross-examination was a suggestion that the allegations against the respondent were made, totally or partially, to found the claim for compensation. In other words, the respondent wished to ultimately submit that the allegations were false and had been made with the ulterior motive, perhaps amongst other motives, to gain a financial advantage.

14. The clarity of this motive was made plain in the cross-examination of the complainant’s mother when she was asked about a claim for compensation that she had made arising from a fall at her housing complex in Red Hill in January 2017. It was put to the witness that she had told the respondent that she had not in fact fallen at Red Hill, but rather at Pine Island. In other words, her compensation claim was fraudulent. The witness denied this allegation.

The Commissioner’s asserted discretion to not produce the documents

15. In her affidavit the Commissioner says that s 29 of the Victims of Crime Act 1994 (ACT) and s 89 of the Victims of Crime (Financial Assistance) Act 2016 (ACT) provide her with the discretion to not produce the documents.

16. The two sections are not identical, but are very similar. The differences are not relevant to the argument before me. For convenience I will set out the relevant part of s 29:

29 Secrecy … (4) A person to whom this section applies need not divulge protected information to a court, or produce a document containing protected information to a court, unless it is necessary to do so for this Act or another law applying in the Territory.

17. The Commissioner says, in her affidavit, that because she “need not divulge protected information to a court” that:

I do not believe that I am legally required to produce the Applications to the Court and I do not choose to do so. (Paragraph 10 of the Commissioner’s affidavit)

18. A “protected information” is defined in s 29(5):

protected information means information about a person that is disclosed to, or obtained by, a person to whom this section applies because of the exercise of a function under this Act by the person or someone else.

19. There is no dispute between the parties that the information sought by the respondent includes protected information. The respondent accepted that “the documents sought will contain protected information in accordance with the definition” (written submissions paragraph 17).

20. Three questions arise:

(a) Does “another law applying in the Territory” include the Rules?

(b) If the answer to (a) is Yes, is it “necessary” to produce the documents?

(c) Once the information is protected, does the Commissioner, because of the words “need not” have an unfettered discretion to refuse to produce the documents?

21. In my view the third question does not arise if the first two questions are answered in the affirmative. In other words, if the Rules are a law applying in the Territory and if they include an obligation to produce documents, in this case through the mechanism of a subpoena, then the documents must be produced regardless of whether or not the Commissioner has decided that she need not produce the documents.

22. I do not think that there is any doubt that the Rules are a law applying in the Territory. Section 8 of the Legislation Act 2001 (ACT) says that a subordinate law is a “regulation or rule (whether or not legislative in nature) made under…. an Act…..” The Rules have been made under s 7 of the Court Procedures Act 2004 (ACT).

23. Part 1.3 of the Legislation Act includes notes on sources of law in the ACT. Note 2 states:

Notes on sources of law … Note 2 The written law of the Territory consists primarily of laws, known as Acts, made by the Legislative Assembly. It also includes regulations, rules of court and other legislative instruments made under specific powers given by Acts. (Written laws made under an Act are commonly called ‘subordinate’ or ‘delegated’ legislation.)

24. The next question is whether or not the Rules make it “necessary” for the documents to be produced to the Court.

25. Subpoenas are governed by Part 6.9 of the Rules. For present purposes I will assume that the subpoena is technically valid.

26. Rule 6601 says that:

6601 Issuing a subpoena (1) In any proceeding, the court may by subpoena order the addressee… … (b) to produce the subpoena or a copy of it and any document or thing as directed by the subpoena.

27. Rule 6602 dictates the form to be used for a subpoena to produce documents. It is form 6.10A. This form says:

You are ordered: to produce this subpoena or a copy of it and the documents or things stated in the schedule—see section A

28. Applying s 29(4) of the Victims of Crime Act, it is prima facie “necessary” for the documents in the schedule to the subpoena to be produced to the Court.

29. The applicant did not dispute that the Rules were a law of the Territory. Rather the applicant said the word “necessary” was the important governing feature. “Necessary”, submitted the applicant, did not mean required to be produced. The applicant submitted that the nature of the subpoenaed documents dictated whether or not their production was necessary. In other words, if the documents themselves were not, for example relevant to the proceedings, it would not be necessary to produce them.

30. I agree with the applicant, as stated in Hogan v Australian Crime Commission & Ors [2010] HCA 21; 240 CLR 651 at [30], that necessary is “a strong word”. But I do not think, for current purposes, that it is any stronger than “required” and is certainly not stronger than “ordered” as stated in the subpoena.

31. I think that “necessary” means what it says. A subpoena requires the production of documents. It is therefore necessary for them to be produced. The starting point for statutory interpretation is always to look at the words of the statute themselves (see, for example, FCT v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at [39]).

32. I think my conclusion is re-enforced by the words following “necessary” in s 29(4). The words are “unless it is necessary to do so for this Act or another law applying in the Territory” (emphasis added). The necessity is for the other law applying in the Territory. In this case it is the law concerning subpoenas. As seen above a subpoena orders the production of documents. It is not for the purpose of any other consideration as suggested by the applicant. The necessity is the answering of the subpoena.

33. The conclusion expressed in the preceding paragraph does not of course mean that there cannot be any challenge to, for example, the breadth of a subpoena or the forensic purpose behind the subpoena. So in this case it would be open to the applicant to submit that the subpoena should be set aside because the documents sought are not relevant. But that is a different process to the applicant’s submission which endeavours to place relevance (or any other source of attack on the documents) within the bounds of the word “necessary” in s 29(4).

34. As can be seen in this case, where the applicant has an alternative argument under s 126B of the Evidence Act, in order to prevent production of the documents, such an argument can be pursued notwithstanding the obligation imposed by s 29(4).

35. This is a summary of my conclusion: if a subpoena is otherwise valid, and if the documents sought are not susceptible to attack on any independent basis, then, without more, it is necessary for the documents to be produced. The “more” can still arise through other avenues of attack on the subpoena, such as relevance, breadth, forensic purpose and, as will be seen below, under legislative provisions such as s 126B of the Evidence Act.

36. In addition, once produced, a separate argument as to access is not precluded.

37. I said, at [21] above, that if the first two questions posed at [20] were answered in the affirmative then it was not necessary to deal with the third question. I have answered the first two questions in the affirmative and so will proceed to the alternative basis upon which it is sought to set the subpoena aside.

Can the Commissioner rely on s 126B of the Evidence Act to not disclose the documents?

38. Section 126B is not a provision relating to whether or not documents should be produced under a subpoena. It governs the exclusion of evidence from being adduced in a court proceeding if the evidence is of protected confidences.

39. However, s 131A effectively imports the considerations relevant to s 126B into the production of documents subject to a subpoena. Clearly therefore I have the power to set aside the subpoena, if appropriate, under the combined effect of ss 126B and 131A.

40. I think it necessary to set out s 126B:

126B Exclusion of evidence of protected confidences (1) The court may direct that evidence not be presented in a proceeding if the court finds that presenting it would disclose— (a) a protected confidence; or (b) the contents of a document recording a protected confidence; or (c) protected identity information. (2) The court may give a direction under this section— (a) on its own initiative; or (b) on the application of the protected confider or confidant (whether or not either is a party). (3) The court must give a direction under this section if it is satisfied that— (a) it is likely that harm would or might be caused (whether directly or indirectly) to a protected confider if the evidence is presented; and (b) the nature and extent of the harm outweighs the desirability of the evidence being presented. (4) Without limiting the matters that the court may take into account for this section, it must take into account the following matters: (a) the probative value of the evidence in the proceeding; (b) the importance of the evidence in the proceeding; (c) the nature and gravity of the offence, cause of action or defence and the nature of the subject matter of the proceeding; (d) the availability of any other evidence relating to the matters to which the protected confidence or protected identity information relates; (e) the likely effect of presenting evidence of the protected confidence or protected identity information, including the likelihood of harm, and the nature and extent of harm that would be caused to the protected confider; (f) the means (including any ancillary orders that may be made under section 126E) available to the court to limit the harm or extent of the harm that is likely to be caused if evidence of the protected confidence or the protected identity information is disclosed; (g) if the proceeding is a criminal proceeding—whether the party seeking to present evidence of the protected confidence or protected identity information is a defendant or the prosecutor; (h) whether the substance of the protected confidence or the protected identity information has already been disclosed by the protected confider or someone else; (i) the public interest in preserving the confidentiality of protected confidences; (j) the public interest in preserving the confidentiality of protected identity information. (5) The court must state its reasons for giving or refusing to give a direction under this section.

41. Subsections (1) and (2) provide for a discretion to exclude a protected confidence. Subsection (3) makes the exclusion mandatory upon the court being satisfied of certain conditions. Subsection (4) contains matters that must be considered in applying the section.

42. Two definitions are important. They are contained in s 126A:

126A Definitions—div 3.10.1A (1) In this division: … harm includes actual physical bodily harm, financial loss, stress or shock, damage to reputation or emotional or psychological harm (for example, shame, humiliation and fear). protected confidence means a communication made by a person in confidence to someone else (the confidant)— (a) in the course of a relationship in which the confidant was acting in a professional capacity; and (b) when the confidant was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law or can be inferred from the nature of the relationship between the person and the confidant.

43. Commencing at [16] the Commissioner sets out the nature of her relationship with the complainant, the description being the Commissioner’s establishment of the existence of the communications with the complainant being a protected confidence.

44. The respondent submitted that the material sought was not a protected confidence. The submission arose from the most recent refinement of the description of the documents sought in the subpoena (see [6], above).

45. It was said that because the documents reflected the preliminary stage of the application for compensation they did not fall into the bounds of any relationship with the Commissioner. I disagree. Once the documents, like the application, had been read by the Commissioner (as they had been) they formed part of the confidential relationship between the Commissioner and the complainant.

46. One of the purposes behind the documents sought was to ascertain the date upon which the application for compensation had been made, or at least received. Neither the complainant nor her mother, in their recorded evidence, had been able to recall the date with any precision. The application having been disclosed, it seemed to me that the date upon which it had been made might be a fact which the Commissioner would be prepared to disclose, but without prejudice to the Commissioner’s overall objection to production.

47. To this end, I asked learned senior counsel to obtain instructions from the Commissioner. He did so and I was informed that the date of the application, and its receipt, would be provided to the respondent in writing. I also enquired of the Crown whether any objection would be taken to the tender of such a document. I was told that the Crown would not object.

48. I note here that the Crown’s overall attitude to the subpoena issue was to take a neutral stance.

49. The next task is to follow the mandatory consideration of the matters set out in s 126B(4). Some of the matters can be considered in tandem, others are of little relevance to the present case.

50. I will leave the question of harm to the end of this exercise.

51. On the assumption, as stated above, that the respondent wishes to attack the complainant’s credibility by suggesting that her version of events was motivated by her desire for compensation, the existence of documents containing the application for compensation could be probative and important. However, the degree to which the documents would be probative, and important, is weakened in this case because both the complainant and her mother agreed that the application had been made.

52. The offences are serious and, correspondingly, the defence to them is important in the respondent’s quest to defeat the allegations and the gravity of the consequences of conviction.

53. As already observed, the complainant and her mother have acknowledged the application for compensation so that other evidence is already in existence and has been disclosed by the protected confider. Further, as a result of the Commissioner’s preparedness to inform the respondent of the date the application was made, and its receipt, the timing of the application will be known to the respondent.

54. I have also been informed that the accused, when interviewed by the police, told the police that the complainant’s mother had said to him that she needed to “think of something that I can do to get money for (the complainant) for her future and stuff”. He also told police that the motive for the complainant was “compo money”.

55. I think “the public interest in preserving the confidentiality of protected confidences” is a significant factor in this case. The Commissioner plays a very important role in enforcing the rights of victims of crime.

56. The objects of the Victims of Crime Act are set out in s 3AA:

3AA Objects of Act The objects of this Act are to— (a) acknowledge the central role of victims in the criminal justice process; and (b) contribute to upholding the safety, privacy and dignity of people adversely affected by crime; and (c) help victims deal with the effects of criminal offences; and (d) acknowledge, promote and uphold the rights and interests of victims in the administration of justice; and (e) recognise and establish appropriate ways for agencies involved in the administration of justice to engage with victims in order to minimise adverse outcomes and prevent trauma for victims; and (f) establish requirements for monitoring and reviewing victims rights.

57. It must be in the public interest that there is no shackle placed on the pursuit of the above objects. To allow confidential discussions between victims (even if only alleged victims) and the Commissioner to be admitted into evidence would be to seriously impede the capacity of the Commission to deal with persons believing they were dealing with the Commissioner on a protected basis.

58. Returning to the question of harm, on one argument the disclosure in evidence of the application for compensation might be seen as contradicting the existence of any harm befalling the complainant as a result of the application being produced and possibly going into evidence.

59. But on the other hand, as in the discussion of public interest, the effect of the production of the documents is very likely to affect the willingness of the complainant to frankly express her emotions and concerns as a victim to the Commission. I think this does amount to harm to the complainant. I also think that this harm, when considered with the factors set out in s 126B(4), will outweigh “the desirability of the evidence being presented”.

60. I think the most determinative of the factors in the present case are the low probative value of the material (the application for compensation having already been disclosed together with the respondent’s assertions about the pursuit of compensation to the police) and the public interest consideration set out above.

61. I make the following orders:

62. Leave is given to the applicant to amend the title of the application in the proceeding to state that the parties to the application are The Crown (the applicant) and Kevin Malone (the respondent).

63. Leave is given to the respondent to amend Schedule A of the subpoena dated 29 March 2022 so as to reflect the contents of the email sent by Ms Georgia Le Couteur on 8 April 2022 and annexed to her affidavit affirmed on 12 April 2022.

64. The subpoena dated 29 March 2022 is set aside pursuant to ss 126B and 131A of the Evidence Act 2011.

65. The Court notes that without prejudice to its position on the production of documents, as described in the subpoena, the Victims of Crime Commissioner will inform, in writing, the respondent of the date of the application for compensation, and its receipt, made by the complainant.

I certify that the preceding sixty-one [61] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: 7 November 2023