R v Norman Lee

1 HEYDON JA: This is an application pursuant to s 5F of the Criminal Appeal Act 1912 for leave to appeal against an order made by Woods ADCJ on 18 August 2000 having the effect of relieving the recipient of a subpoena issued by the defendant in criminal proceedings from complying with it. 2 The subpoena was addressed to "The Proper Officer/Secretary" of "Mission Australia". It ordered production of the following documents: "All records, notes, reports and documents including but not limited to counselling notes or reports with respect to (the complainant), date of birth: 20 July 1979." 3 The subpoena was issued in proceedings in which the accused was charged, on 12 November 1999, with five counts of indecent assault on a person under the age of sixteen years, namely, the complainant, by a person in authority. The offences charged are alleged to have taken place at various times in 1989-1990, when the complainant was a primary school pupil of the defendant's. The charges followed a statement to the police made by the complainant on 24 July 1999. 4 The procedural history is that the subpoena was returnable on 11 August 2000. On that day Mission Australia produced seventy-three pages of documents. The presiding judge, Sidis DCJ, was handed a letter by the Crown which the complainant had sent to the Crown. In that letter the complainant claimed that the documents in question contained "protected confidences" and said that she did not consent to their production. Sidis DCJ refused an application for access and decided that the complainant should be heard in respect of her claim. 5 On 14 August 2000 the complainant attended without legal representation before the primary judge but said she would have it on 16 August 2000. On 16 August the matter was argued. 6 The reasoning of the primary judge can be summarised as follows: (a) the material caught by the subpoena comprised seventy-three pages, being copy handwritten notes of telephone and face-to-face communications between the complainant and officers of Mission Australia; (b) the officers of Mission Australia were "counsellors" and were persons falling within paragraph (a) of the definition of "counselling communication" in that they were "counselling, giving therapy to or treating the [complainant] for [an] emotional or psychological condition" within the meaning of these words in s 148(4)(a) of the Criminal Procedure Act 1986; (c) therefore the documents were "counselling communications"; (d) therefore, since they were counselling communications made by or to an alleged victim of a sexual assault offence, they were "protected confidences": s 148(1); (e) therefore Mission Australia, being a person who objected to production of the documents recording protected confidences, could not be required by subpoena to produce the documents unless the exceptions set out in s 150(1) applied; (f) those exceptions did not apply, first, because the documents lacked "substantial probative value" (s 150(1)(b)(i)) and, secondly, because the public interest in preserving confidentiality was not substantially outweighed by the public interest in allowing inspection; (g) accordingly, Mission Australia was not obliged to produce the documents for inspection. 7 On 1 September 2000 the defendant brought this application for leave to appeal against the primary judge's order and argument took place today. In view of the fact that the defendant's trial is fixed to commence on 23 October 2000, these reasons for judgment are delivered ex tempore.

Scope of the application 8 The defendant takes two points. 9 The first point is that the primary judge erred in concluding that the documents caught by the subpoena recorded protected confidences. 10 The second point is that the primary judge erred in concluding that the documents did not have substantial probative value.

An initial difficulty 11 It seems that the primary judge had nothing before him apart from the subpoena and the documents which the subpoena caught. Neither the Crown nor the defendant had access to those documents and the solicitor appearing for the complainant and the complainant had access to them only briefly. Counsel for the defendant did, in the argument before the primary judge, quote from the complainant's statement to the police on 24 July 1999, but no evidence was formally tendered. 12 The reasons for judgment of the primary judge indicate that in part his conclusions were based on his perusal of the documents. He was entitled to inspect them: s 156 of the Act. Thus he described them as follows: "The material is 73 pages of copies of handwritten notes of private phone and face communications of Ms Wheeler with officers of Mission Australia with comments from those officers relating to those communications covering various dates during the period from 20-6-97 to 18-4-2000." He also said: "Here we have notes of phone conversations and face-to-face meetings of the confider with persons who were in a position of taking confidences, helping the confider with her day-to-day life, providing counselling and therapy and generally being a sounding board for day-to-day problems." 13 His conclusion that the Mission Australia officers were within the concluding words of s 148(4)(a) appears to rest on a reading of that material. So does his conclusion that the documents were not of substantial probative value. 14 Plainly, the primary judge could not have proceeded as he did, given the lack of evidence before him, without inspecting the documents. This Court has had to adopt the same course. It is unsatisfactory but inevitable that the Court lacks full assistance from counsel for the defendant in these circumstances. Before this Court, however, an affidavit of Carolyn Lisa Bradley dated 12 October 2000 was read. Apart from setting out matters of procedural history, it annexes the statement of the complainant to the police dated 24 July 1999. 15 The relevant provisions in Pt 7 of the Criminal Procedure Act 1986, which confer a sexual assault communications privilege, are as follows: "148 (1) In this Part: protected confidence means a counselling communication that is made by, to or about a victim or alleged victim of a sexual assault offence.… (4) In this section: counselling communication means a communication

(a) made in confidence by a person (the counselled person) to another person (the counsellor) in the course of a relationship in which the counsellor is counselling, giving therapy to or treating the counselled person for any emotional or psychological condition, or

(b) made in confident to or about the counselled person by the counsellor in the course of that relationship, or

(c) made in confidence about the counselled person by a counsellor or a 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

(d) made in confidence by or to the counsellor by another counsellor or by a person who is or had counselled or otherwise treated the counselled person for any emotional or psychological condition of the person. 150

(1) A person who objects to production of a document recording a protected confidence on the ground that it is privileged under this Part cannot be required (whether by subpoena or any other procedure) to produce the document for inspection by a party in, or in connection with, any criminal proceedings unless:

(a) the document is first produced for inspection by the court for the purposes of ruling on the objection, and

(b) the court is satisfied (whether on inspection of the document or at some later stage in the proceedings) that:

(i) the contents of the document will, either by themselves or having regard to other evidence adduced or to be adduce by the party seeking production of the document, have substantial probative value, and

(ii) other evidence of the protected confidence or the contents of the document is not available, and

(iii) 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 allowing inspection of the document.

(2) Without limiting the matters that the court may take into account for the purposes of subsection (1)(b)(iii), the court must take into account the likelihood, and the nature or extent, of harm that would be caused to the principal protected confider if the document is produced for inspection."

16 On the first issue, namely, whether the persons to whom the complainant was speaking were "counsellors", the relevant passages in the primary judge's reasons for judgment on this issue, apart from those quoted above, are as follows: "While I have been able to peruse the material in order to make my determination I cannot give examples here of the type of material and references that it contains s that in itself could be a breach of what are private conversations however innocuous, as even the daily round of life may be a matter of personal comments not meant for the public arena. Whilst the current legislation was not in existence at the time I note the references in the case of R v Young (1999) 46 NSWLR 681 in the judgment of James J to the fact that there is an underlying concern that in a counselling relationship built on confidentiality, privacy and trust, which enables a victim to explore major issues concerning her sense of safety, privacy and self-esteem, the knowledge that details of a victim's conversations with her therapist may be used against her in subsequent criminal proceedings can inhibit the counselling process and undermine its efficacy. His Honour also referred to the argument that allowing an accused and defence counsel to have access to all the victim's thoughts, feelings, insecurities and the recounting of painful past experiences as revealed in counselling sessions may exacerbate this trauma. I feel that the above are relevant in this context before me now in applying the legislation and considering the objection to the production of the Mission Australia material before me now. It could also be a matter for argument as to the qualifications or status of the persons to whom the confidences are given. The legislation clearly does not limit the qualifications of the person confided to such as to a medical or suchlike practitioner or even a certified counsellor or social worker. The provision uses the words 'to another person .. in the course of a relationship in which the counsellor is counselling, giving therapy to or treating the counselled person for any emotional or psychological condition'. I am satisfied that this description is sufficient to cover the officers of Mission Australia who were communicating with Ms Wheeler in these notes. I consider that they are clearly private confidences given to persons who are giving counsel and therapy in the course of a relationship of counselling for emotional or psychological conditions." 17 There are difficulties in these passages. First, if the material contained "private conversations" which were "innocuous" taking place as "part of the daily round of life", they might well not be communications made in the course of a relationship in which the counselled person was being counselled, receiving therapy or receiving treatment for an emotional or psychological condition. 18 Secondly, the reference to James J's judgment is a reference to a quotation he made (46 NSWLR 681 at 736 [297]) from the Attorney General's Second Reading Speech in introducing the Evidence Amendment (Confidential Communications) Bill on 22 October 1997. That Bill, when enacted, inserted Pt 3.10 Div 1B into the Evidence Act. That legislation excluded evidence of "protected confidences". "Protected confidence" was defined as meaning a protected counselling communication made by a person against whom the sexual assault offence had been or had been alleged to have been committed. "Protected counselling communication" was defined as meaning a communication made by a person in confidence to another person ("the counsellor") in the course of a relationship in which the counsellor was treating the person for any emotional or psychological condition suffered by the person. The Attorney General's words were not directed to the meaning of "treating" or "emotional or psychological condition" in the definition of "protected counselling communication". They throw even less light on s 148(4)(a) in the instant legislation. 19 The first argument propounded on behalf of the defendant was that the primary judge should not have upheld the claim which the complainant made in the absence of proof by evidence tendered in open court of the conditions set out in s 148(4)(a). I would reject that argument. While counsel for the defendant is correct in saying that to claim the privilege without evidence led in open court is unsatisfactory, the fact is that the primary judge was entitled to look at the documents and in an appropriate case the documents subpoenaed by themselves could establish the pre-conditions for the operation of s 148, at least where, as here, their authenticity was accepted. 20 The second argument propounded on behalf of the defendant was as follows. It was submitted that the legislation requires that there be a diagnosis, a client relationship, and a communication for the purpose of providing treatment or therapy. It was submitted that there must be a nexus between the diagnosis, the treatment and the therapy on the one hand and the relationship on the other. A person who is merely a sounding board or is merely offering a sympathetic ear is not enough. If it were enough, every person to whom a sexual complaint is made would fall within the section. 21 The solicitor appearing for the complainant answered that argument in the following way. He contended that the subpoenaed material spoke for itself, it was lengthy, it was said to be deep and it was said to go into the complainant's life and background to a substantial degree. The submission rejected the proposition that there needs to be a diagnosis, it was sufficient that there be observable an emotional problem which might well be distinct from a medical problem. The submission concentrated in particular on the word "counselling" which, it was submitted, should be broadly defined as an act or a series of items of conduct designed to help someone through a crisis. 22 A third controversy was raised before this Court between the parties. It was raised by the solicitor appearing for the complainant. He submitted that even if this Court concluded that the privilege did not exist or the conditions for its claim had not been made out, inspection should be refused on the ground that the material lacked substantial probative value. This was not argued below and in my opinion the argument should not be entertained in this Court. Related to it was a contention that if the Court concluded that the privilege had not been made out, the matter should be remitted to the trial judge to determine the extent to which inspection of the material should be permitted. I would reject that for the same reason, namely, that the contention, if to be made at all, should have been made before the primary judge. 23 Turning then to the difference between the defendant and the complainant in relation to the second argument propounded by the defendant, it seems to me that the meaning of "counselling, giving therapy to or treating the counselled person for any emotional or psychological condition" must depend significantly on the meaning of "any emotional or psychological condition". An emotional condition is a state of consciousness turning on emotions like pleasure, pain, desire, aversion, surprise, hope, joy, sorrow, fear or hate (as distinct from cognitive and volitional states of consciousness) which reveals or reflects some defect or illness or disease or abnormality. Similarly, a psychological condition refers to a particular condition of health - a state of health which is poor or abnormal or diseased or otherwise defective from the emotional or psychological point of view. Psychology is the science of mind and of mental states and processes; a psychological condition is a state of mind in which there is some defect or illness or disease or abnormality in the victim's mental states and processes. Therapy is the curative medical or psychiatric treatment of diseases, disorders and defects and is administered by a therapist, being a person trained to give therapy by physical, psychological or psychiatric methods. To treat an emotional or psychological condition is to deal with it by examination, diagnosis, application of remedies, care and otherwise in order to relieve or cure it. While "counselling" can have quite wide meanings, and the argument propounded on behalf of the complainant appealed to them, in this context the word means advising with a view to relieving or curing an emotional or psychological condition from which the counselled person is suffering. In this sense a counsellor must possess some substantial skill acquired by training or experience. Accordingly, the expression "counselling, giving therapy to or treating the counselled person for any emotional or psychological condition" refers to the provision of expert advice and procedures by persons skilled, by training or experience, in the treatment of mental or emotional disease or trouble. The expression does not include persons who merely seek to assist others suffering from an emotional or psychological condition. A confidante or friend or relative does not, by reason of those circumstances alone, fall within s 148(4)(a). 24 The argument for the complainant involved reading the words "counselling" and "emotional condition" very broadly. While in some contexts those words can be so read, in the present context I do not think they bear a sufficiently wide meaning for the complainant's purposes. 25 The evidence establishes no more than the following. After leaving home on 20 June 1997, the complainant has been residing in premises supplied by Mission Australia as part of what is known as a "Sydney City Mission Supported Living Program", sometimes called "SLP", which is a "program that provides accommodation for persons who cannot live at home or have nowhere to stay" (complainant's 24 July 1999 statement to the police, paragraphs 3 and 4). The complainant has had a social worker allocated to her. She "is a youth support worker who is there for support for the kids in the program if required (she does not actually provide counselling as such, but she can assist in obtaining the services of qualified counsellors if required)" (complainant's 24 July 1999 statement, paragraph 6). That social worker appears to be the author of many of the notes produced on subpoena. Those notes reveal a constant pattern from June 1997 to April 2000 of the social worker and other persons discussing the complainant's problems and, in the light of what she said, making suggestions for their solution. When medical problems arose, they suggested that she see doctors of various kinds for various purposes. When issues of reconciliation between her and her family arose, they proposed and arranged for family counselling at Family Therapy Clinics. When the question of whether the complainant should receive individual counselling arose, there was discussion about how the Mission Australia officers would arrange for it to take place. There were also discussions about her visits to anxiety clinics conducted by mental health teams. 26 The point is that even assuming that the relevant communications were made in confidence (which is questionable) and even assuming that the complainant was suffering from "any emotional or psychological condition", it was not the persons to whom she spoke at Mission Australia who were giving her counselling, therapy or treatment, but other persons. The officers at Mission Australia merely arranged for those other persons to give the counselling, the therapy or the treatment, or listened to the complainant's accounts of her visits to those other persons. 27 The relationship between the complainant and the persons at Mission Australia to whom she spoke was that they were providing her with accommodation - she could not live at home and she could not afford other accommodation. They looked after her in a general way, but not in a way which fell within s 148(4)(a). 28 It is not necessary in the present case to consider the extent to which the "counsellor" must be relevantly trained or experienced. In Jaffee v Redmond 518 US 1 (1996), the Supreme Court of the United States recognised a privilege between therapist and patient. The majority (Stevens J, with whom O'Connor, Kennedy, Souter, Thomas, Ginsberg and Breyer JJ agreed) said at 15-17 that the privilege applied to confidential communications made to licensed psychiatrists and psychologists. They also said that it applied to communications to licensed social workers - but only "in the course of psychotherapy". Social workers may well provide mental health treatment. But in my judgment the social worker or workers involved here did not provide treatment to the complainant: rather, they made arrangements for others to do so, or listened to the complainant's accounts of that treatment. 29 Accordingly, in my judgment, the complainant has not discharged the burden which rests on her of demonstrating that the relevant documents contain "protected confidences". 30 In due course I will propose that inspection be ordered. It is important to note that this has no implication for what use may be made of the material at the trial. Whether the material is admissible in evidence at the trial will be a matter for the trial judge. What use can be made of it in cross-examination will also be a matter for the trial judge. It would be wrong for defence counsel to use the material to harass or humiliate the complainant, though I stress that I am not making any suggestion that Mr McClintock intends to do any such thing or would do any such thing. The point is simply that no case has been made out to prevent inspection of the material. What happens at a later stage will depend on different criteria.

Second issue: application of s 150 31 In view of the conclusion arrived at on the first issue, the second issue does not arise. In relation to this issue, it is the defendant who bears the burden of proving the matters set out in s 150(1), particularly those described in s 150(1)(b). It is not necessary to say anything more than that the primary judge's conclusion that the contents of the document lacked "substantial probative value" is questionable. However, it has not been demonstrated that s 150(1)(b)(ii) was satisfied. Nor does the defendant complain of the primary judge's finding that preservation of confidentiality was in the public interest.

Orders 32 I propose the following orders:

1. That the application for leave to appeal be granted.
2. That the appeal be allowed.
3. That the declaration and order of Woods ADCJ be set aside.
4. That Mission Australia be ordered to produce the documents to the Court.
5. That leave be granted to the parties to inspect the documents when produced on subpoena by Mission Australia.
6. I would direct the defendant to communicate speedily with Mission Australia so that they can be informed of their obligations and can comply with them in sufficient time for proper preparation of the trial. 33 MASON P: I agree. 34 WOOD CJ at CL: I also agree.

McCLINTOCK: Could I just clarify, when the reference is made to the production to the Court, is that this Court?

HEYDON JA: No, I think to the District Court. Is this the position, that the documents, the originals of them, are actually in the hands of Mission Australia?

HEYDON JA: Evidently no one in this room has even photocopies of the documents except the Bench.

McCLINTOCK: That again is as I understand the position.

HEYDON JA: Do you think there will be any difficulty in getting Mission Australia to produce the documents to the Court tomorrow?

McCLINTOCK: I do not know that I will need the originals. So long as photocopies are produced, we would be asking for access to the documents in this Court.

HEYDON JA: Who sent to the Court yesterday the photocopies?

McCLINTOCK: Mission Australia. We contacted Mission Australia and asked them to produce the documents.

HEYDON JA: The General Manager, New South Wales, sent a letter to the Registry, Court of Criminal Appeal dated 17 October which says, "As per the request of Campbelltown Court, copy letter attached, please find enclosed the above documents."

WOOD CJ at CL: The original subpoena has not been set aside.

McCLINTOCK: As I understand his Honour Acting Judge Woods, it was set aside.

McCLINTOCK: I think he ordered the return of the documents to Mission Australia.

MASON P: He did not set it aside, he just upheld a privilege in relation to production.

HEYDON JA: He said, "Mission Australia is not required to produce these documents for inspection by any party."

WOOD CJ at CL: They are, on one view, required to produce them. Another answer is if you seek short leave to issue another subpoena - but I don't think we can do that so far as the District Court is concerned.

WOOD CJ at CL: You may find there is no problem. I think the Court will also grant you leave to serve it by fax or some other way.

MASON P: I have not marked my copy of the documents. Accordingly, I think it would be in order if I made it available to the Crown Prosecutor and, under his supervision, access and/or copying can take place on a condition that you inform the trial judge that this is what has happened.

WOOD CJ at CL: It probably also should be subject to at least an undertaking the distribution or access will be confined to those who are assisting the parties, that is, the legal representatives.

McCLINTOCK: We can make that undertaking generally.

MASON P: My copy of the document will be produced now to the Crown on that condition and subject to that undertaking, which is noted, and the Court makes the orders proposed by Heydon JA in his reasons.

BOWE: Does that mean the defendant cannot see the documents?

MASON P: That seems to be the condition which has been accepted, access is limited to legal representatives.

HEYDON JA: You do not want the defendant to see the documents?

HEYDON JA: Yes, that is covered by the limited terms of the undertaking given by Mr McClintock.

BOWE: That is what I understood. I just wanted it clarified.

WOOD CJ at CL: There seems to be no reason for him to personally see them. That does not mean they cannot be used for cross-examination.

McCLINTOCK: Nor their contents discussed. If there are matters that arise that I need instructions in respect of, I need to discuss those. The undertaking would be limited to him perusing the actual documents themselves.

MASON P: Speaking for myself, and I assume for the Court, it would be subject to whatever orders the trial judge may think fit to make in the course of the trial.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.