R v Veitch

Judgment 1In this matter I previously gave a judgment on 23 April 2013 in regard to whether or not leave to issue a subpoena should have been granted. Since then more information has come to the court. The first lot of information relates to proceedings in the Burwood Local Court in regard to some assault charges that had been laid against the complainant which were dealt with under s 32 of the Crimes (Forensic Provisions) Act on 9 August 2012. The court file was subpoenaed. It contained a statement of facts, a report dated 7 August 2012 by Lewena Jackson, senior sexual assault counsellor for the Department of Health; a report dated 3 August 2012 by Dr Stanek, a medical officer in psychiatry with the Department of Health, Hainsworth Unit; and a statement by the complainant, undated, as to why the offence was committed. That statement details some aspects of her mental illness. 2There is little dispute that the complainant has suffered from, in her words, a borderline personality disorder and bipolar type I disorder, and has done so for many years with fluctuations in her mental well-being from time to time. The accused is charged that on 18 May 2011 he assaulted her causing actual bodily harm, and that he then had sexual intercourse without consent; and further that he also then further assaulted her. The accused does not dispute that at a time sexual intercourse took place, but that it was consensual. He will also allege that the complainant attacked him some time after and that he was responding to that attack when she was injured. Not unusually for such cases, there are no independent witnesses, though there will be evidence of complaint from two lay witnesses and I understand from some police officers. 3The complainant was receiving treatment for her mental health prior to and up to the date of the alleged assault, but that treatment was unrelated of course to the alleged sexual assault. An application to issue a subpoena under s298 of the Criminal Procedure Act was rejected by me in my former judgment. Since then, I allowed further subpoenas to be issued for potentially protected confidence material. In response, Dr Stanek has produced psychotherapy notes from 14 April 2010 to 12 May 2011. At this stage I had refused access to that material, except to the notes of the last session on 12 May 2011. The complainant consented to those notes, that is the last session of 12 May, being made available to the parties. 4I have also ruled that material produced by the North-Western Area Health Service Eating Disorders Centre to be irrelevant, as it relates to a short period of treatment prior to May 2007, and it is difficult to see how that could be relevant to what happened in 2011, despite the fact that eating disorders can be evidence of a dissociative state. Mr Taylor now argues whether any of the material sought to be produced as to the complainant's mental health up to 17 May is indeed caught by the division of the Criminal Procedure Act, having regard to the definition of "harm" contained in s 295 and the undoubted purpose of why this legislation came into being, which was to protect post-event counselling records of a victim of sexual assault being made available in a criminal trial. 5Unfortunately, that point was not argued in Veitch 2 [KS v Veitch (No2) [2012] NSWCCA 266]. However, at para 16 Basten JA discussed the relationship of the definition of harm to the rest of the legislation. His Honour said: "First in the definition of counselling and communication in subs (296) subs (4) subs (a) it refers to any harm a person being counselled may have suffered, the person being counselled being the victim of an alleged sexual assault. It might be inferred that the harm in question is that suffered by the person as a consequence of the alleged offence. Similarly in subs (5), the concept of counselling is limited to a circumstance where the counsellor had undertaken training or study, or has experience relevant to the process of counselling persons who have suffered harm. Again, the reference appears to be to the harm suffered by the victim as a consequence of the alleged offence." 6He goes on to say at para 18: "The expansive provisions of s 296 subs (2) tend to conflict with the definition of counselling communication in 296 subs (4). The latter with its reference to any harm the person may have suffered, together with the considerations identified in s 299D(2) referred to below suggest a concern to encourage reporting of sexual assaults without prejudice to the victim's need to obtain counselling. On the other hand, the terms of s 296(2) expand the concept of a protected confidence to include counselling unrelated to the sexual assault offence the subject of a charge, or indeed any sexual assault offence. One explanation may be that Parliament wished to avoid the victim of a sexual assault being discouraged from reporting the offence if that course might result in revelation of any other disclosures made in counselling sessions, even if unrelated to the sexual assault. That said, the broad construction giving full effect to s 296(2) might have greater force if it covered counselling for any condition including disabilities rather than harm, which implies damage to which one has been subjected by another." 7In regard to some documents that had been produced in those proceedings and that had been considered by his Honour Judge Norrish, His Honour went on to say in para 19, that: "The trial judge assumed that all the documents were covered by the privilege, thus adopting the broader interpretation." That position was not challenged by the respondent to the appeal, and that was the basis upon which the Court then went on to consider the constitutional challenge. 8Section 298(1) provides that, except with the leave of the Court, a person cannot seek to compel, whether by a subpoena or any other procedure, any other person to produce a document recording a protected confidence in or in connection with any criminal proceedings. The question is, what is a protected confidence? Section 296(1) defines it to mean "a counselling communication that is made by, to or about a victim or alleged victim of a sexual assault offence." By itself, that would tend to suggest that counselling communications made after the sexual assault offence are protected; but subs (2) protects counselling communications (a) even if made before the alleged sexual assault offence; or (b) even if it is not made in connection with a sexual assault offence. 9To say that these provisions are opaque is an understatement. In a criminal proceeding a court should be hesitant to narrow or expand unclear legislation, where it may operate to the detriment of an accused. Given that harm is tied to the definition of "counsel" and "communication" in s296, and that the training or experience counsellors require is that required for persons who have suffered harm, subject to other considerations of admissibility such as may relate to prior sexual experience or the like, it is difficult to see that if a complainant is suffering from a mental illness at the date of an alleged offence and is being treated for that illness, why records relating to that treatment would not be made available, at least to an expert, for the purpose of that expert giving general evidence of the nature and effect that such an illness and its treatment may have had on a complainant, utilising s108C of the Evidence Act. 10Of course, such an expert may not be able to give evidence as to a particular complainant, but could only comment generally as to the witness's ability to observe or remember facts and events but not how the individual would have in the particular circumstances remembered or made observations. Section 108C was considered in Dupas v R [2012] VSCA 328 on 21 December last year. In that case, the Court relevantly said amongst other things: "The evidence which the applicant wished to adduce related to the reliability of the evidence of identification. This was credibility evidence which by virtue of the credibility rule was inadmissible unless it met preconditions for admissibility in s108C." 11The first condition in the section is that it must be relevant in that, if it were accepted, the opinion could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings. In ISJ v R [2012] VSCA 321, it was held that once it is plain that the sole use of the evidence is directed to the credit of the witness, the preconditions to admissibility laid down under div 1 of pt 3.7 of the Act must be satisfied. 12The court considered the NSW decision of Peacock v R, [2008] NSWCCA 264; [(2008) 190 A Crim R 454 ('Peacock'), followed in RGM v The Queen [2012] NSWCA 89]. At 263/264 in Dupas the Court said of an aspect of Peacock: "We are with respect unable to accept that distinction. Credibility is specifically defined as follows. Credibility of a person who has made a representation and has been admitted in evidence means the credibility of the representation, and includes the person's ability to observe or remember facts and events about which the person made the representation. The credibility of a witness means the credibility of any part or all of the evidence of the witness, and includes the witness' ability to observe or remember facts and events about which the witness has given, or is giving, or is to give, evidence. Credibility evidence is defined in relation to a witness or other person as evidence relevant to the credibility of the witness or person that (a) is relevant only because it affects the assessment of the credibility of the witness; or (b) is relevant because it affects the assessment of the credibility of the witness, and for some other purpose for which it is not admissible or cannot be used, because the provisions pt 3 point 3.2 to 3.6. In short, credibility imports notions of both truthfulness and reliability. Section 102 provides that credibility evidence about a witness is not admissible, plus prima facie evidence relevant to the reliability of a witness is not admissible. Section 108C provides a further exception to s 102. Section 108C permits the leading of evidence relevant to credibility from persons with specialised knowledge, provided the person has specialised knowledge based on the person's training, study or experience; and the evidence is evidence of an opinion of the person that (1) is wholly or substantially based on that knowledge; and (2) could substantially affect the assessment of the credibility of the witness; and (c) the Court gives leave to adduce the evidence. The explanatory notes to the NSW legislation state that the section was intended to enable the admission of expert opinion evidence that is relevant to the fact finding process, for example, to prevent misinterpretation of the behaviour of a witness with an intellectual disability or cognitive impairment, or inappropriate inferences from such behaviour. In CMG v R (2011) VSCA 416, Harper JA alluded to the possibility of leave being granted to an expert, who met the criteria set out in s108C, to testify as to aspects of children's behaviour, such as that of child victims of sexual assault, which are not matters of ordinary knowledge. By way of example the Court went on to say in Dupas: "Again, expert evidence might be led of the effect of a personality disorder, where there was a rational basis for that disorder to undermine a witness' credibility." 13Dupas, was a murder trial in which identification was an issue. Dr Kemp gave generalised evidence as to the reliability of identification evidence, but it was also sought to obtain from him opinion evidence as to the reliability of each of the identification witnesses who gave evidence. In that regard the Victorian Court of Appeal said in Dupas: "The judge excluded Dr Kemp's specific evidence because he could not express an opinion as to the reliability of the individual identifications. He had not been provided with all the detail of how those identifications occurred, nor had he interviewed or observed any of the witnesses. As he acknowledged in the case of each witness, he could not express an opinion about the reliability of that witness' identification, nor could he assess the likelihood of the identification being unreliable. The judge therefore concluded correctly in our view that for Dr Kemp to have commented on the precise circumstances pertaining to each identification, or to have expressed a view as to whether those circumstances gave rise to the risk of unreliability, would have been tantamount to him expressing the opinion that the individual identifications were unreliable. As we have said, the necessary foundation did not exist for him to extrapolate from the research to the circumstances of each identification about which he was not fully informed, or for the individual witnesses about whom he knew very little. An opinion about the circumstances would have gone outside the scope of his specialised knowledge. An opinion about the reliability of the identifications would necessarily have rested on a combination of speculation, inference and personal view. At the same time, such an opinion would have been invested with a spurious appearance of authority and would have subverted the legitimate process of fact finding." 14Returning to the issue of whether confidential counselling material ought to be generally available, at least to the legal representatives and the parties, depends somewhat on whether one takes a narrow or a broad view of s296, as referred to by Basten JA in paras 16 and 18 in Veitch 2. When one considers the statutory policy considerations against disclosure, which are particularly set out albeit in a different form in s299 subs (2) as: "...(a) the need to encourage victims of sexual offences to seek counselling; (b) that the effectiveness of counselling is likely to be dependant on the maintenance of the confidentiality of the counselling relationship; (c) the public interest in ensuring that victims of sexual offences receive effective counselling; (d) that the disclosure of the protective confidence is likely to damage or undermine the relationship between the counsellor and the counselled person; and (e) whether the disclosure of the protected confidence is sought on the basis of a discriminatory belief or bias, it seems fairly clear that the thrust of the legislation is to protect a complainant's treatment by counselling after an alleged sexual assault." 15The present case is one where it is in effect one person's word against another's. The person making the allegation may at the time have been suffering from a condition that may affect their reliability to observe or remember facts and events. Where the defence is one of consent and self-defence then clearly, before a jury could find the offences proved beyond reasonable doubt they would have to accept the complainant's evidence beyond reasonable doubt, and thereby reject the defendant's evidence. Any evidence that at the time of these allegations the complainant was experiencing a disturbed mental state clearly goes to the issue of her reliability, and hence her credibility. 16The complainant has made various statements at different times that suggest she has either not been frank or is, perhaps, unreliable, and of course that may be as a result of her mental difficulties. For example, in the statement made to the police on 24 May 2011, she says: "When I was an adolescent I was diagnosed with borderline personality disorder. I started taking antidepressants around this time at that age. In my late teens I was diagnosed with bipolar type I disorder. For the last four years I have been on stable medication, having been to the same psychiatrist at Cumberland Hospital. My doctor's name is Dr Schulman Stanek. My disorder has a daily effect on me. My bipolar disorder is in check but my borderline personality disorder is what I struggle with. Some days are better than others. Doing the volunteer work, having a stable psychiatrist and being on stable medication has really helped." 17Yet in her statement to the magistrate in the Local Court at Burwood, amongst other things, she says: "In the last year and a half I have had three suicide attempts. The most recent was three and a half weeks ago after receiving a summons for this court appearance. At the moment I am currently seeing a psychiatrist once a week. I have been seeing Dr Stanek for the past five years and have seen great benefits in this. On the day of the incident--" [talking about the assault she had been charged with] -"--I prepared myself as well as I could for my travels. I took my normal medication which I have been compliant with for the past five years and extra anxiety medication, also my breathing exercise I had been learning. The reality of this trip was different from the one that I had planned. I suffered panic and anxiety attacks on my journey there. I did not feel safe and I was frightened and scared. The start of my trip home was as traumatising as my trip there." 18Then she goes on to say: "I am unaware of the events that followed, but to the best of my memory I do recall boarding the train and being seated by myself. I do recall being gestured to to take my feet off the seat. I also recall hands in my face. I felt threatened and scared. After this I have no recollection of the events that unfolded. The next thing I do recall was being handcuffed on a train station platform yelling about rape. I have a history of disassociation. This happens to me in times of extreme distress, as on the night of the SA (sexual assault)." 19In that same material, in a letter from Dr Stanek, he says: "The complainant has been my patient over the past five years, and during that time has seen me on a regular basis for both psychotherapy and prescription and medications. She attends on a weekly basis. She has a diagnosis of both bipolar disorder and complex post-traumatic stress disorder. This has occurred due to a complicated family history of illness and subsequent complex developmental trauma. This has left [KL] extremely vulnerable to re-traumatisation. Her description of the events leading up this period, that is, the period when she was charged with the assault, is consistent with that of a severe dissociative episode. Severe dissociative episodes can occur when an extremely vulnerable person is placed under increasing stress either acutely or chronically." 20I note from the material subpoenaed from the Cumberland Hospital that Dr Stanek prescribed lithium 500 milligrams, quetiapine 400 milligrams, and valproate 150 milligrams on 16 September 2010. All those drugs are anti psychotic drugs. On February 2 2011 he prescribed valium 5 milligrams and lithium 500 milligrams. On 28 April he prescribed lithium 250 milligrams, quetiapine 200 milligrams and valproate 150 milligrams. On 16 June 2011, the complainant's urine from a sample taken on 20 May 2011 was tested, and found to contain nordiazepam, oxazepam and temazepam, which are benzodiazepines from drugs such as valium, doxylamine which is an antipyretic analgesic and calmative, and venlafaxine which is an antidepressant for major depression. I do not know if the urine was tested for lithium, quetiapine or valproate. The concern for the defence is that the complainant may not have been taking her prescribed medication as she says, and that is a matter that goes to an issue of credit, but could also go to her state of mind on the day in question. 21In Veitch 2, Basten JA said at para 31 and following: "Under the general requirements in relation to a subpoena, or a notice to produce, it is not necessary that the moving party demonstrate that the material sought will be admissible in evidence. The accepted test of a legitimate forensic purpose is undoubtedly broader than that. An accused may well seek access to documents in order to formulate lines of cross-examination, either by suggesting that the applicant has made inconsistent statements to a counsellor in relation to the circumstances of the offence, or by using material in the medical records to suggest that the evidence of the applicant may be unreliable. It may be possible to formulate a line of cross-examination without seeking to admit into evidence the document or the information contained in the document. To have substantial probative value will constitute a significant reduction in the material which might be made available to the accused under the general law, with respect to access to material on subpoena, or through a notice to produce, or indeed a call for a document in the course of proceedings." 22This reduction of material is the result of the inclusion in s 299D(1) of para (a). Paragraph (b) is intended to prevent access to counselling communications where relevant material is available from another source, such as in this case, the applicant's statement to police. The third requirement (c) imposes an additional and significant constraint as to public interest. Basten JA said: "That has two limbs. The first addresses the public interest in maintaining protected confidences generally, while the second relates to possible harm to the particular confider. An assessment that the information has substantial probative value in the usual case no doubt by casting doubt on the veracity or reliability of the complainant, will militate in favour of disclosure where it could give rise to a doubt as to the guilt of the accused. ... The respondent characterised the effect of the division as precluding access to such communications, however that is not a fair reflection of the operation of s 299D. Although the balancing exercise is weighted against disclosure, that course is nevertheless permitted, where the Court is satisfied that the public interest in such an outcome substantially outweighs the countervailing considerations. Substantial probative value, accepting that it extends to questions or evidence relevant to the credibility of the complainant, must nevertheless be concerned with admissible material." 23Justice Adams had some comments to make on s 299D in the case of NAR v PPC1 [2013] NSWCCA 25, but his remarks were not adopted by Hoeben JA or Beech-Jones J, who gave the principal judgment with which Hoeben JA concurred. Whilst Adams J's comments may be instructional, they do not appear to have in my view much application to the present case. In the circumstances of the present case, it is my view that medical and psychiatric records of the complainant up to the date of the offence, whilst they might contain counselling that would otherwise be and remain confidential in the normal course, is not confidential counselling within the meaning of s 296 of the Criminal Procedure Act as it does not relate to any relevant harm suffered by the complainant, adopting a narrow interpretation of s 296 in accordance with the stated rationale of the legislation. 24Whilst it is true that "the complainant is not on trial" as that expression applies to an accused, she is in effect, as are all witnesses, subject to the trial process, which is to determine whether or not the Crown can establish the elements of each offence beyond reasonable doubt. In that regard a complainant and any other witness's evidence is on trial to be tested to see if it meets that high standard. That does not mean that the Court should engage in a trial within the main trial to test the competence of the complainant. That is essentially a matter ultimately for the jury to determine on being properly instructed. 25If I am wrong in my interpretation of s296, I need to apply the tests set out in s299D to determine whether the documents sought. As to (a), either by themselves or with other evidence have substantial probative value. I am satisfied, for the reasons that I have given, that they do. 26The second test is (b), that there are other documents or evidence not available. Whilst some evidence is available from the complainant herself and now possibly from the Burwood Local Court papers, that evidence would not sufficiently deal with the defence concerns as to the complainant's reliability as at the date of the offence. 27As to the third test (c), this is a serious criminal offence. The maximum penalty is twenty years imprisonment, and there is a standard non-parole period of ten years. The consequences of a conviction are thus severe. The potential unfairness to the accused in not making this information available, in my view, tips the scales in favour of disclosure. [See Basten JA in Veitch 2 at para 38]. 28Further, I cannot see that the disclosure of this information is likely to affect the operation of s 299D subs (2)(a), (b), (c), (d) or (e). In her confidential affidavit, exhibit 4 in these applications, the complainant sets out her concerns about the disclosure of this type of information and what it would mean to her, particularly in regard to ongoing help that she is receiving. I am mindful of those concerns which I accept are real and genuine. It is partly for those reasons that I will place limitations on disclosure, and may need to restrict general cross-examination about irrelevant matters. But in balancing the detriment to the complainant and that public interest, with the potential unfairness to the defendant and the public interest in a fair trial, I would allow access to these documents subject to the following restrictions. (1) Access is to be limited to counsel for the accused and his instructing solicitor, and to the Crown and his instructing solicitor, and to counsel for the complainant, who is to have first access with a view to indicating whether there is any particular additional application to be made in regard to material contained therein. (2) The material is not to be copied except for the purpose of providing material to an expert psychiatric witness, who is to be called in the proceedings. (3) All photocopied material is to be returned to the court or returned to the provider in each case. 29There is a significant amount of historic psychiatric material going as far back in one instance at least to 1995. It would seem prima facie that this material could not be substantially relevant as to how the complainant may have behaved in 2011, but it may provide an expert with a fuller understanding of what is obviously a complex clinical picture in regard to a complainant. On that basis, I am prepared to allow access to that material. That ruling will also apply to the additional material that was produced on subpoena, which we now have namely the material from Westmead Hospital and Nepean Hospital.