R v Markarian

Judgment 1HIS HONOUR: It has been my misfortune to spend the last day and a half looking at some provisions of the Criminal Procedure Act which are designed to affect the operation of a criminal trial, or in this case a special hearing, and which are simply unworkable. 2I refer to those provisions of the Criminal Procedure Act concerning sexual assault communications privilege. It is clear that those who instructed parliamentary counsel in the drafting of that legislation had no idea how a criminal trial worked. I will give one example. Section 298 requires that leave of the court be sought before a person can issue a subpoena to produce a document recording a protected confidence, that term being earlier defined in s 296. How is the person who issues the subpoena supposed to know whether the document would contain a protected confidence? More importantly perhaps, how is the judge who is responsible for deciding whether to grant leave, supposed to know those things? And then what happens if a subpoena is issued without leave being granted? Can, as in this case, leave be granted retrospectively, that is after the documents have been produced on subpoena? There is no easy answer to that question. 3Then when documents are produced there is often, and this case is a good example, a need for the judge to read large quantities of documents, often hospital records. The documents in this case, are often in handwriting which is difficult or even impossible to read at times. Obscure medical terms and drug names are referred to. And there is clearly irrelevant material. This occupies a great deal of the judge's time, because it must all be read. And yet in understanding the documents, and in particular in understanding those matters that the judge must decide on, see 299D for example, the judge makes the decision without assistance from the parties primarily involved in the criminal trial, namely the prosecution and the accused. 4And finally decisions as to whether documents should be disclosed, are almost invariably to be made before a complainant is cross examined. The judge knows little about the trial, little about the issues, little about the complainant himself or herself. 5To say that these provisions need urgent revision is an understatement. Some of them were identified as long ago as 1999 (see R v Young (1999) 46 NSWLR 681 at [316] - [317]). And even if the provisions can be made workable, the very basic assumption which underlies these provisions is, probably, false, see R v Young at [121]. This legislation is bad policy, badly implemented. There is even an issue, as yet unresolved in a superior court I am told, as to the extent to which communications are caught under the provisions. There is a fundamental issue that arises. Do the various definitions in s 296 which must be looked at in determining what a protected confidence is, mean that it is only communications made in the course of counselling for the alleged sexual assault which are caught or does it cover all manner of treatment offered to a person who is alleged to be the victim of a sexual assault, even if what led him or her to seek the treatment, has nothing to do with the alleged sexual assault? 6Perhaps the person who is alleged to have been the victim of a sexual assault falls off a skateboard and breaks his or her wrist - Miss Hampel who appears for the complainant in this matter submits that that is covered by the term "protected confidence". She may well be right. 7Clearly, if Miss Hampel is right, then two second reading speeches given in Parliament are less than completely accurate. This is yet another demonstration of the need for urgent revision of these provisions. 8The complainant alleges that she was sexually assaulted by Mr Markarian. He was earlier found unfit to plead and so faces a special hearing. Without obtaining leave, various subpoenas were issued to, in particular, hospitals, area health services and a women's refuge. The documents were produced. A judge later retrospectively gave leave for the subpoenas to be issued. It is now my task to determine whether there should be disclosure of any of the documents which have been produced on subpoena. 9I begin contemplation of this issue at the beginning. What is covered by the term "protected confidence". 10Ms David appears for Mr Markarian. Her submission is that all of the definitions in s 296 must be read in the light of the primary matter defined, that is "protected confidence". That definition speaks about communications made by an alleged victim of a sexual assault offence. It is those terms which Miss David says influence the remainder of s 296 so that when I look at the definitions of "counselling communication", and "counsels" like I must read them on the understanding that what is protected is communications designed to overcome the "trauma of the alleged sexual assault". (I have taken those words from second reading speech when s 296 was introduced in its current form.) 11But that restriction is difficult to accept in the light of s 296(2). It is clear from that subsection that communications can be protected even if they have nothing to do with overcoming the trauma of the attack because they were made before the alleged sexual assault ever occurred. 12Ms David has referred me to various provisions of the Interpretation Act, in particular s 34 which talks about the circumstances in which extrinsic aids to the interpretation of statutes can be considered by a judge. She says that it would be manifestly absurd or unreasonable for the wider definition of protected confidence to be adopted. It is verging on the absurd or the unreasonable to give a definition of protected confidence the wider meaning suggested by Miss Hampel. Why should treatment given for a broken wrist after falling off a skateboard in which nothing is ever said about an alleged sexual assault be caught? Why should alleged victims of sexual assault be treated so differently from alleged victims of other offences such as robbery or non-sexual violence? 13Upon closer examination however the unreasonableness or absurdness is limited. A protected confidence is automatically not disclosed simply because it comes within that term. A judge can order the disclosure of protected confidences after considering the provisions in 299D so, assuming that treatment for a broken wrist after falling off a skateboard has substantial probative value in the trial, it would be difficult to see why documents relating to that would not be disclosed. 14The more fundamental problem I have with Ms David's submissions as to the limitations of protected confidence is that I simply cannot read 296 in any way consistent with the way she has submitted it should be read. There is no ambiguity, the words are clear and any suggestion that they lead to an absurd conclusion is dealt with by, as I have just mentioned, the circumstance that protected confidence can nevertheless be disclosed in appropriate circumstances. 15The very terms of s 296 indicate that the second reading speeches to which I was referred were wrong when they suggested that the definition of protected confidence was limited to, as one former Attorney General said, "discussions about the sexual assault." 16I turn now to the documents that I have considered in this matter, one of them is easily dealt with. The documents from Wollongong Women's Refuge occupy a lever arch folder. As you might expect there are personal details in there, notes made by various people as to what the complainant has said about personal issues including notes arising from the allegations that are subject of the present special hearing. Who made those notes however is something I have not been told. 17One of the limitations in s 296 is in s 296(5): "a person counsels another person if the person has undertaken training or study or has experience that is relevant to the process of counselling persons who have suffered harm." I simply do not know anything about the people who have made the notes in the folder produced from the women's refuge in terms of their training, study or experience. When I pointed this out to Miss Hampel and I afforded her the opportunity of supplementing the evidence with further evidence as to those matters that offer was declined. 18The result is that exhibit 3 on this voir dire contains no document coming within the term protected confidence under s 296 of the Criminal Procedure Act. There is thus no occasion for me to consider anything about whether its disclosure would for example affect the public interest in alleged victims of sexual assault from seeking counselling. Both the Crown and counsel and solicitor for Mr Markarian will have access to exhibit 3. 19The position is different as regards documents produced from Wollongong Community Mental Health Service, and Wollongong Hospital. I will proceed on the basis that those documents record counselling as defined in s 296 even where the attendance at hospital was completely unrelated to the alleged sexual assault. I note for example that some attendances at hospital post dated by a considerable amount of time the alleged sexual assault and concerned matters of the type that one might attend the casualty section of the hospital irrespective of whether that person was alleged to have been the victim of an earlier sexual assault. 20Despite the clear disconnection between counselling someone because they are alleged to have been the victim of a sexual assault and treating someone because of an injury they have suffered which has caused them to go to casualty, s 296 is very wide and covers treatment given for that physical injury. A communication made in confidence to another person who is counselling the person in relation to any harm is a counselling communication as defined. The breadth of the words, "any harm" will be immediately noticed and the term "counsellor" includes a situation where one person treats another person such as by putting a band aid on a scratch. In those circumstances the records produced by the hospital mental health service are, I am satisfied protected confidences. But as I have noted earlier that does not mean that I should not order their disclosure. 21I must now turn to s 299D. The first matter I have to decide concerns the probative value of evidence which would arise as a result of the production of the documents and decide whether that probative value is substantial. For this reason I inquired of Ms David what the issues in this special hearing would be. The issue is apparently one of consent and the knowledge of Mr Markarian. In those circumstances Ms David suggests that treatment or counselling in relation to the complainant's drug use, use of alcohol or mental health would be relevant. I gather that she does not seek the production of anything relating to treatment of the complainant for physical injuries and so I will order that there is to be no disclosure of any documents in that category. These matters have no probative value. 22In the circumstances of this matter as they have been explained to me I can understand how any effect of drugs or alcohol on the complainant during the alleged sexual assaults would have substantial probative value. I can also immediately accept, and so find, that related to that would be any disclosure of the complainant as to her intravenous drug use. The statement by the complainant suggests that Mr Markarian injected her with drugs against her will. Prior intravenous use of drugs and the extent of that prior use, would be relevant to explain why on the face of it, it appears that the complainant had a syringe at the time the sexual assaults were alleged to have been committed. I fully accept that disclosure of the extent of the complainant's prior intravenous drug use, extending earlier than the time at which the sexual assaults were alleged to have occurred, has an effect upon drug addicts receiving effective counselling and treatment for their addiction. I am referring in general to the matters in s 299D when I say that. I read that section and considered all of the matters that I am required to consider. 23It is important that victims of sexual offences receive effective counselling and that extends to receiving effective counselling for personal matters unrelated to the alleged sexual assault, such as in this case, drug addiction. But the substantial probative value of the disclosure to my mind substantially outweighs the public interest in preserving the confidentiality of what the complainant has disclosed about her intravenous drug use. 24Having reviewed the documents and doing the best I can, without the assistance of Ms David or the Crown, who are prevented by law from assisting me, because they are prevented by law from knowing what the documents contain, I can see no substantial probative value in any material in those documents referring to the complainant's mental health or history of alcohol consumption. If I am wrong about the latter aspect, the alcohol consumption issue, I note that there is evidence independent of the documents the subject of this application, to indicate that at the beginning of the events which have led to these charges, the complainant was intoxicated by alcohol. (See under s 299D). There is other evidence apart from the evidence in these documents which would be a further reason even if the evidence of alcohol consumption did have substantial probative value, for me nevertheless to rule that the documents should not be disclosed. 25I finish this judgment by returning to where I started. I am not at all confident that the rulings I have made are consistent with Mr Markarian getting a fair trial or to be more precise, a fair special hearing. I fully appreciate the need for those who are alleged to have been the victims of sexual assault, to be protected from harm which is occasioned by the disclosure of highly personal and sensitive information to all manner of people as sometimes occurs in the course of a criminal trial. Yet ultimately trials are about determining whether a person who is accused of a crime is guilty of that crime or not. Traditionally, the law has placed great store on giving rights to an accused person, which are designed to avoid the conviction of the innocent. It is a very uncomfortable feeling to be presiding over a special hearing where the operation of the provisions I have been considering, make it more likely that an accused person would be unable to properly prepare a defence and ultimately make it more likely that an innocent person will be convicted. 26I make one further and final plea for these provisions to be examined by Parliament in the hope that further consideration be given to the need for them, and, if they are needed they become both workable, and, consistent with long held rights that are given to persons accused of serious crimes. 27I order therefore that exhibit 3 is disclosed and that those parts of the other exhibits which relate to the complainant's intravenous drug use are disclosed.