On 8 March 2016, at the request of the solicitor for Rogerson, I issued a subpoena to Dr Robert Hampshire, a medical practitioner, for the production of (inter alia) the following:
"All medical records and documents concerning Paul Charles Kenny (DOB: 27/12/1953) including but not limited to any/all clinical notes; referrals, admission and discharge summaries and referrals to psychiatric hospitals and facilities; clinical notes, file notes; reports, assessments, medication prescription, medical certificates and other documents relating to any/all diagnosis, prognosis and treatment of Mr Kenny."
The subpoena was returnable before the Court on 11 March, at which time documents were produced by Dr Hampshire. Given the terms of that part of the schedule to the subpoena set out in [1] above, I took the liberty of undertaking a very brief examination of the material which was produced. It seemed to me that the nature of that material was such that Mr Kenny should be given the opportunity of having access to it in the first instance, in order to determine whether he wished to make an application pursuant to s. 126B of the Evidence Act 1995 (NSW) ("the Act").
I caused an email to be sent to Mr Kenny to that effect on the afternoon of 11 March 2016. His solicitor, Mr O'Brien, subsequently confirmed that Mr Kenny sought first access to the material. That access was granted, following which Mr O'Brien indicated that an application would be made pursuant to s. 126B of the Act for the exclusion of evidence of protected confidences which were contained in the material produced. On that occasion I asked Mr O'Brien that he make clear in due course those parts of the material in respect of which the application was to be made.
The application was made today on Mr Kenny's behalf by Mr Steirn SC. In support of the application Mr Steirn tendered an email from Dr Hampshire of 20 March 2016, to which I will return.
The Crown tendered (notionally at least) a transcript of evidence given before me on a pre-trial application heard in 2015 which included evidence given by Mr Kenny.
In order to put the present application into its proper context, it is necessary for me to set out some background.
In early 2015, before this trial commenced, I was notified that Ms Jessica McNamara, the daughter of the accused McNamara, had given a statement to the police, but objected to giving evidence under s. 18 of the Act. I heard evidence from Ms McNamara in May 2015 in support of that application. In the course of her evidence (commencing at T40 L7 of the proceedings on 12 May 2015) Ms McNamara explained that one of the bases of her application was that she feared for her own personal safety, as well as that of other members of her family. According to Ms McNamara the source of that fear (at least in part) was a conversation she had with Mr Kenny, who was then the solicitor for Rogerson. She gave evidence (at T42 L11-12) that Mr Kenny had said to her:
"It's not the Triads you need to be afraid of, its Roger. He knows where you live. They could just jump over and go through the windows".
Mr Kenny also gave evidence on the application under s. 18. With the benefit of a certificate issued under s. 128 of the Act, he effectively conceded (commencing at T 142 L1) that had said to Ms McNamara at least some of the words that she had attributed to him. Mr Kenny said that there had been "more to the conversation" he had with Ms McNamara, although when asked what else he had said he was unable to give any further detail.
Ultimately, I upheld Ms McNamara's objection: R v Rogerson, R v McNamara (No 1) (2015) NSWSC 592. In the course of that judgment I found (at [71]) that on the evidence before me, Mr Kenny had used the words attributed to him by Ms McNamara, and in doing so had threatened her.
Subsequently, for reasons which remain unexplained, Ms McNamara withdrew her objection. She is presently giving evidence in the trial.
In the course of cross-examining Ms McNamara before the jury, counsel for Rogerson elicited evidence of her conversations with Mr Kenny. The Crown has now indicated that he will call Mr Kenny to give evidence once Ms McNamara's evidence has concluded.
It was against that background that the subpoena was issued to Dr Hampshire, and the documentation produced. It can be reasonably expected that when Mr Kenny gives evidence he will be cross-examined by counsel for Rogerson about his conversations with Ms McNamara. It can also be reasonably expected that it will be put to him that anything he may have said to Ms McNamara was not said at Rogerson's behest.
When the hearing of the application commenced before me this morning, Mr Steirn directed me to an envelope marked "privilege", which was said to contain the material in respect of which the application was made. That material comprised a bundle of documents. Regrettably, no attempt was made by those acting for Mr Kenny to identify those parts of the documents which were said to disclose a protected confidence. Even on the most cursory examination, there are some parts of them which could not possibly attract the provisions of s. 126B. It has essentially been left to me to determine which parts may be caught by the provisions of that section.
It must be said that the manner in which the present application has been approached by those acting for Mr Kenny has been less than helpful. It has placed a far greater burden on the Court than should ever have been the case. Approaching an application such as this in a blanket and all-encompassing way completely fails to have regard to the fact that in directing itself to documents, s. 126B does so only to the extent that such documents disclose a protected confidence. Simply because there may, within a document, be evidence of a protected confidence does not mean that evidence of the entirety of the document should be excluded: R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681 at [257]; 729 per James J.
Section 126B is in the following terms:
126B Exclusion of evidence of protected confidences
(1) The court may direct that evidence not be adduced in a proceeding if the court finds that adducing 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 such a direction:
(a) on its own initiative, or
(b) on the application of the protected confider or confidant concerned (whether or not either is a party).
(3) The court must give such a direction 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 adduced, and
(b) the nature and extent of the harm outweighs the desirability of the evidence being given.
(4) Without limiting the matters that the court may take into account for the purposes of this section, it is to 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 relevant offence, cause of action or defence and the nature of the subject matter of the proceeding,
(d) the availability of any other evidence concerning the matters to which the protected confidence or protected identity information relates,
(e) the likely effect of adducing 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 adduce 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 any other person,
(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.
Section 126A contains two particular definitions which are relevant for present purposes. The first is the definition of the term "protected confidence":
"protected confidence means a communication made by a person in confidence to another person (in this Division called 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."
The second is the definition of the word "harm":
"harm includes actual physical bodily harm, financial loss, stress or shock, damage to reputation or emotional or psychological harm (such as shame, humiliation and fear)."
Generally speaking, the documentation produced by Dr Hampshire consists of clinical notes, reports, correspondence, and test results regarding particular aspects of Mr Kenny's health. As previously noted, Dr Hampshire provided a report which was tendered to me in support of the application and which includes the following:
" … you asked if I thought my clinical notes would result in psychological harm to my patient. I think there is a very real risk that they could. They could embarrass him and/or damage his standing within the legal profession within which he works. They could also cause damage to his referral patterns in the broader population upon which he is reliant for his ongoing career."
I reiterate that whilst Dr Hampshire opined that disclosure of his "clinical notes" may result in harm to Mr Kenny, s. 126B is directed to protected confidences, not whole documents.
Section 126B creates a judicial discretion, as opposed to a privilege: Wilson v the State of New South Wales [2003] NSWSC 805 at [18]. The nature of the section generally, and the interplay between subs 126(1) and (3), is explained by authors of "Uniform Evidence in Australia" (at [126B-2]):
"There is great latitude in the Court's powers in subs (1). It is obliged to consider at least the matters set out in subs (4) and also the matters in s. 192(2), but is not limited to those matters, and in any event has a discretion whether or not to make the direction, subject to subs (3). By contrast, if the Court is satisfied of the matters in subs (3) it has no discretion whether to give a direction. Subsection (3) requires a court to direct that evidence of a protected confidence not be adduced if the judge is satisfied that if the evidence was given it is likely that harm might be caused (directly or indirectly) to a protected confider and the nature and extent of the harm outweighs the desirability of the evidence being given."
As I understand it, senior counsel for Mr Kenny relied primarily upon the provisions of subs. (3) of s. 126B. Although subs. (3) is in mandatory terms (as evidenced by the use of the word "must") it seems to me that the factors set out in subs. (4) are relevant to the determination which is required to be made by subs. (3)(b). I have considered each of those factors.
Firstly, in light of the fact that Mr Kenny has admitted using some of the words attributed to him by Ms McNamara, I consider that the probative value of the evidence over which the claim is made is limited (subs 4(a)).
Secondly, and for similar reasons, the importance of the evidence in the proceedings is limited (subs. 4(b)).
Thirdly, I have taken into account the nature and gravity of the alleged offences (subs 4. (c)). They are obviously serious.
Fourthly, I have taken into account the fact that there is no other evidence touching upon the confidences which are sought to be protected (subs. 4(d)).
Fifthly, I have had regard to the likely effect of the disclosure of the protected confidences upon Mr Kenny (subs. 4(e)). Leaving aside the fact that there may be harm to his legal practice (which would fall within the definition of "harm" in s. 126A of the Act) Dr Hampshire's unequivocal view is that there is a real risk that disclosure of his clinical notes (and, I infer, the disclosure of any similar or related material) could result in psychological harm to Mr Kenny. As I have already observed, the section is not directed to the exclusion of documents. However, to the extent that any of the material discloses a protected confidence, the importance and significance of Dr Hampshire's opinion will be obvious without any further comment.
Sixthly, I have taken into account what means might be available to limit the extent of the harm that is likely to be caused to Mr Kenny if evidence of the protected confidence was disclosed (subs. 4(f)). There is, of course, power to order that the Court be closed for the purposes of the evidence being given. There is also power to a make a suppression or non-publication order. Whilst those orders could ameliorate the potential harm to Mr Kenny's practice, they would seemingly do little to ameliorate what has been identified by Dr Hampshire as the real risk of psychological harm.
Seventhly, I have had regard to the fact that these are criminal proceedings and that the evidence is sought to be adduced on behalf of one of accused (subs. 4(g)). In this respect there is a necessity to bear firmly in mind the right of the accused to a fair trial.
Eighthly, I have taken into account the fact that on the basis of the evidence which is before me there has been no disclosure of any of the material over which the claim is made, either by Mr Kenny or any other person (subs. 4(h)).
I am satisfied that if evidence of those parts of the material which disclose a protected confidence were adduced, it is likely that harm of the kind to which Dr Hampshire refers would, or might, be caused to Mr Kenny. I am also satisfied, having taken into account all of the factors in subs. (4), that the nature and extent of that harm, particularly insofar as it relates to psychological harm, outweighs the desirability of evidence of protected confidences being given. In particular, the probative value of such evidence, and its importance, is limited for the reasons I have given.
Because of the unsatisfactory manner in which this application has been conducted, and because there is a need to deal with the matter expeditiously to ensure that trial continues without interruption, I have redacted from the material produced those parts of it which in my view disclose a protected confidence, and in respect of which I have determined that the present application should be granted. I will provide Mr Kenny's legal representatives with a copy of the redacted material. If there is any further issue to be raised, it will be necessary for Mr Kenny's solicitor or senior counsel to appear before the Court at 10am tomorrow to make any further application.
Finally, I should note that senior counsel for Mr Kenny submitted that if I concluded that the application should be granted in respect of any of the material produced, such conclusion should extend and apply to any question asked of Mr Kenny about the general subject matter of his health. I do not accept that submission. The section, as I have said, applies to evidence of protected confidences as defined. Subject to questions of relevance, it is not difficult to envisage that a question might be asked of Mr Kenny about this general issue, the answer to which would not disclose evidence of a protected confidence and would therefore fall outside the provisions of s. 126B.
Accordingly, it should be clearly understood that my present determination is limited to the protected confidences which I have determined are disclosed in the material which was the subject of the application. In light of that determination, those who act for Mr Kenny should take whatever course they consider appropriate to protect Mr Kenny's interests in respect of any question(s) put to him in cross-examination.
For these reasons, and subject to any further application being made, I order that the redacted portions of the material produced by Dr Hampshire be excluded pursuant to s. 126B of the Act.
[2]
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.
Decision last updated: 15 June 2016