R v O�Rafferty [2016] ACTSC 141

EVIDENCE - JURISDICTION, PRACTICE AND PROCEDURE - Subpoena - application for leave to disclose protected confidence - written application required - evidence in criminal trial

Court Procedures Act 2004 (ACT), s 5A

Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 40V, 55, 58, 58(3)(b), 59, 60, 61, Div 4.2.2B

Alister v The Queen [1984] HCA 85; (1983) 154 CLR 404

KS v Veitch (No 2) [2012] NSWCCA 266; (2012) 273 FLR 1

O'Rafferty v The Queen [2016] ACTCA 13

Re an Application by McInnes [2009] ACTSC 29; (2009) 194 A Crim R 377

R v Joyce [2002] NTSC 70; (2002) 173 FLR 322

R v Saleam (1989) 16 NSWLR 14

R v WR (No 2) [2009] ACTSC 110

M Jones and A Crocker, Responding to Sexual Assault: The Challenge of Change (ACT, Canberra, 2005)

1. The accused, Kevin Henry O'Rafferty, is to stand trial to commence on 12 September 2016, on one count of engaging in sexual intercourse with the complainant without her consent.

2. The proceedings have a lengthy history, which it is not necessary to recount for the purpose of these reasons. The prior proceedings are summarised by Burns J in O'Rafferty v The Queen [2016] ACTCA 13 at [1]- [4]. It is sufficient to say that a first trial was held where Mr O'Rafferty was convicted of one count of sexual intercourse with the complainant without her consent and acquitted of the other. An appeal against conviction was upheld but, ultimately, a new trial was ordered. The new trial contemplated by the court is that which Mr O'Rafferty will face in September.

3. Application has now been made for leave to issue a subpoena addressed to the Proper Officer - Medical Records at Queanbeyan CAMHS, which I understand to be the Queanbeyan Child and Mental Health Services.

All documents including, but not limited to, attendance notes, treatment notes, treatment plans (including a GP Mental Health Treatment Plan) and referrals for [the complainant] as relate to the diagnosis, symptoms and medication of bipolar disorder for the period March 2012 - July 2013 inclusive.

5. This material, if in the possession, custody or control of the addressee, could well contain what is called in s 55 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the Miscellaneous Provisions Act), a "protected confidence". These are communications by a person against whom the sexual offence was, or is alleged to have been, committed, where those communications were

(a) made to a counsellor by that person, or made by the counsellor to that person;

(b) where the counsellor is a person trained or experienced in counselling, including therapy or treatment to persons who have suffered harm occasioned by such offences;

(c) and made before or after the acts alleged to constitute the offence, and even if not in relation to the offence or its consequences; and

(d) where the communication was made in circumstances giving rise to a reasonable expectation of confidentiality.

6. The Miscellaneous Provisions Act provides for a regime regulating the use and limits on the use of such documents in court proceedings. It provides for a general immunity from production to parties or adducing in evidence protected confidences without leave of the court. Thus, s 58 of the Act relevantly provides

58 General immunity for protected confidences

(1) This section applies in relation to a proceeding.

(2) A protected confidence must not be disclosed in, or for the purposes of, the proceeding unless the court dealing with the proceeding gives leave for the disclosure.

(3) Without limiting subsection (2)--

(a) a person cannot be required (whether by subpoena, application, notice or any other procedure), in or in relation to the proceeding, to produce a document recording a protected confidence, unless the court gives leave; and

(b) protected confidence evidence is not admissible in the proceeding, unless the court gives leave.

Example for par (a)

A person could not be required to disclose a protected confidence in response to a request for production of documents in a proceeding unless the court gives leave.

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

7. This provision is very broad and applies both to trials and to pre-trial proceedings. Subsection (3)(b) requires, in my view, an application for leave of the court before a subpoena which requires production of protected confidences may be issued. See R v Joyce [2002] NTSC 70; (2002) 173 FLR 322 at 331; [24]. That was done in Re an Application by McInnes [2009] ACTSC 29; (2009) 194 A Crim R 377.

8. Of course, a subpoena may be issued where either it seeks documents that unexpectedly include protected confidences, or the lawyer asking for it to be issued has not taken the trouble, through ignorance, inadvertence or carelessness (but hopefully not deliberately flouting of the provisions of the Miscellaneous Provisions Act) to seek the leave of the court first. That is not the position here.

9. It would appear, however, that a subpoena so issued, without leave, is an irregularity and not a nullity. See KS v Veitch (No 2) [2012] NSWCCA 266; (2012) 273 FLR 1 at 9; [29]. The court may set aside that subpoena in those cases, however. See R v WR (No 2) [2009] ACTSC 110 at [34].

10. Neither of those situations arises here. The applicant, the accused, Mr O'Rafferty, has, very properly, approached the court for leave to issue the subpoena. Initially, however, he made, effectively, an oral application. The Miscellaneous Provisions Act does not permit this. Section 59 requires a written application as follows:

59 Application for leave to disclose protected confidence

(1) An application for leave must -

(a) be in writing; and

(b) set out the leave sought; and

(c) set out the applicant's arguments in support of the application (including the matters mentioned in section 60(2) (Threshold test--legitimate forensic purpose)).

(2) The application must also--

(a) set out briefly the nature of the protected confidence evidence (if known); and

(b) set out, or be accompanied by a copy of, any relevant documents.

11. While there are, from time to time, legitimate reasons for matters of court practice and procedure to be included in primary legislation, such as Acts of Parliament, such occasions are rare. Matters of practice need to be flexible to meet an array of contingencies, while preserving the interests of justice.

12. In this case, there were good reasons why the applicant may have reasonably thought that an oral application would be appropriate. He had been granted leave to have three other subpoenas issued in the same terms to certain mental health professionals prior to his first trial and there was no difficulty with that.

13. Nevertheless, the legislation is inflexible and requires compliance with the terms of s 59 of the Miscellaneous Provisions Act and with no provisions for waiving the requirement in the interests of justice, or indeed, while preserving those interests of justice, for enabling the business of the court to be dispatched as "quickly, inexpensively and efficiently as possible": see s 5A of the Court Procedures Act 2004 (ACT). There was no option but to require the applicant to provide a written application. Incorporation of inflexible procedures in the Act, which can only be varied with difficulty, does not achieve the objective as set out in the Court Procedures Act.

15. The legislation also provides some challenges for the grant of leave to issue the subpoena, which must meet the threshold required by s 60 of the Miscellaneous Provisions Act it is as follows:

60 Threshold test--legitimate forensic purpose

(1) The court must refuse the leave sought under section 59 if not satisfied that the applicant has established a legitimate forensic purpose for seeking the leave.

(2) To establish a legitimate forensic purpose, the applicant must -

(a) identify a legitimate forensic purpose for seeking the leave; And

(b) satisfy the court that there is an arguable case that the evidence in relation to which the leave is sought would materially assist the applicant in his or her case in the proceeding.

(3) The court must decide whether or not to refuse the application under this section before it conducts a preliminary examination of the protected confidence evidence under section 61.

16. This test will not provide too high a threshold for parties who might seek the issue of such a subpoena, for it is, in reality, the test for the issue of any subpoena. It is, indeed, the answer to a claim that a subpoena be set aside. See, for example, R v Saleam (1989) 16 NSWLR 14 at 17.

17. The Miscellaneous Provisions Act then proceeds to make provisions for the court to inspect the documents and conduct, under s 61 of that Act, a preliminary examination of the documents produced before permitting the parties to have access to them. I do not need to explore these provisions, though they, too, have some curiosities.

18. In this case, the key witness for the Crown is the complainant who, it has been said, has a mental impairment which may be relevant to her reliability as a witness. The case is one of what is often called "a word on word case" or "an oath on oath case". There was no independent medical or forensic evidence that corroborated the complainant's evidence. The jury rejected the complainant's evidence in relation to one count in the earlier trial. It is, therefore said to be "on the cards" (Alister v The Queen [1984] HCA 85; (1983) 154 CLR 404 at 414) that the requested material will materially assist the accused in his defence.

19. The need to explore that issue for the purposes of the trial appears to me to be a legitimate forensic purpose. While not directly opposing the grant of leave, the Crown did submit that when the subpoena was returned, there will need to be a consideration further of this issue.

20. In particular, the Crown flagged that it would be relying on s 40V of the Miscellaneous Provisions Act in the further conduct of the re-trial. That permits the Crown to adduce the evidence of a witness, such as the complainant in these proceedings, by playing an audio visual recording of the evidence given by the witness at a pre-trial hearing in a re-trial as well.

21. Such a pre-trial hearing under Div 4.2.2B of the Miscellaneous Provisions Act includes the examination-in-chief (and where appropriate, including a police interview under Div 4.2A), cross-examination and re-examination.

22. As explained in M Jones and A Crocker, Responding to Sexual Assault: The Challenge of Change (ACT, Canberra, 2005) at pp 132-3, from which report the initiative for these provisions came, there are a number of desirable consequences, including the improvement of the quality of the evidence and a reduction in the stress for complainants for having to repeat many times over their evidence, which often contains details of an intimate, personal, embarrassing and distressing kind, in having such a provision in the legislation.

23. Application may, however, be made for an order that a complainant appear at the trial and be further cross-examined, but the provisions make some restrictions on such orders. Whether such application has been made may be relevant to whether any material produced in response to the subpoena should be disclosed.

24. I will give leave under s 58 of the Miscellaneous Provisions Act to issue the subpoena.

I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.