R v Young [1999] NSWCCA 166 | Case summary

R v Young [1999] NSWCCA 166 | Case summary | Zoe

[26]

Statutory Construction 3 The basic issue is what, if anything, should the courts do when it appears that Parliament has failed, apparently by inadvertence, to deal with an eventuality required to be dealt with if the purpose of a statute is to be achieved? The extrinsic materials set out in the judgment of James J indicate that at least some of the legislators recognised that the adverse effects of revelation of protected confidences, within Division 1B of the Evidence Act, would occur from disclosure by way of ancillary process, as much as from use in evidence in court. 4 James J has annexed to his judgment the additional words which this Court should insert in Division 1B, according to the submissions made on behalf of the Attorney-General and the New England Area Health Service. 5 The proposition that a court can introduce words into an Act of Parliament offends a fundamental principle of our constitutional law. It is no part of the function of any judge to amend legislation. The task of the courts is to determine what Parliament meant by the words it used, not to determine what Parliament intended to say. (See Stock v Frank Jones (Tipton) Ltd [1978] WLR 231 at 236G; Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591 at 613G, 645C-D; R v Bolton; Ex parte Beane (1987) 162 CLR 514 at 518; Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 459. 6 In order to construe the words actually used by Parliament, it is sometimes necessary to give them an effect as if they contained additional words. This is not, however, to introduce words into the Act. This involves the construction of the words actually used. Judicial statements which appear to have been prepared to countenance something more than this, should be so understood. 7 The most frequently cited formulations are: "It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do". ( Thompson v Goold & Co [1910] AC 409 at 420 per Lord Mersey) and "…we are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself". ( Vickers, Sons & Maxim Ltd v Evans [1910] AC 444 at 445 per Lord Loreburn LC)

[27]

To similar effect is the following formulation: "Additional words ought not to be read into a statute unless they are required in order to make the provision intelligible". ( Wills v Bowley [1983] 1 AC 57 at 78B) 8 The process by which words omitted by inadvertence on the part of the draftsperson may be supplied by the Court, must remain capable of characterisation as a process of construction of the words actually used. 9 The contemporary approach is as set out by Lord Diplock in Wentworth Securities v Jones [1980] AC 74 at 105-107: "My Lords, I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purposes of the Act. But in doing so the task on which a court of justice is engaged remains one of construction; even where this involves reading into the Act words which are not expressly included in it. Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850 provides an instance of this; but in that case the three conditions that must be fulfilled in order to justify this course were satisfied. First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy; secondly, it was apparent that the draftsman and Parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law. Unless this third condition is fulfilled any attempt by a court of justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed. Such an attempt crosses the boundary between construction and legislation. It becomes a usurpation of a function which under the constitution of this country is vested in the legislature to the exclusion of the courts." 10 The passage has been adopted and applied in this Court. (See Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 422 per McHugh JA (an authority frequently quoted with approval, eg. in Bropho v Western Australia (1991) 171 CLR 1 at 20); Tokyo Mart Pty Ltd v Campbell (1988) 15 NSWLR 275 at 283 per Mahoney JA: Bermingham v Corrective Services Commission of NSW (1988) 15 NSWLR 292 at 299-300 per Hope JA; 302 per McHugh JA. See also Saraswati (1990-91) 172 CLR 1 at 22 per McHugh J and Newcastle City Council v GIO General Ltd (1996-97) 191 CLR 85 at 113 per McHugh J). 11 The three conditions set out by Lord Diplock should not be misunderstood. His Lordship did not say, nor do I take any of their Honours who have adopted the passage to suggest, that whenever the three conditions are satisfied, a court is at liberty to supply the omission of the legislature. Rather, his Lordship was saying that in the absence of any one of the three conditions, the court cannot construe a statute with the effect that certain words appear in the statute. 12 As I understand the recent cases, they are not authority for the proposition that a court is entitled, upon satisfaction of the three conditions postulated by Lord Diplock, to perfect the Parliamentary intention by inserting words in a statute. The court may construe words in the statute to apply to a particular situation or to operate in a particular way, even if the words used would not, on a literal construction, so apply or operate. However, the words which actually appear in the statute must be reasonably open to such a construction. Construction must be text based. 13 The contemporary approach to construction is well described as 'literal in total context' (E Dreidger Construction of Statutes (2nd ed, 1983) p2). See eg CIC Insurances Ltd v Bankstown Football Club Ltd (1995-97) 187 CLR 384 at 408; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490; 72 ALJR 841 at [69]. The courts no longer "make a fortress out of the dictionary" (Cabell v Markham 148 F2d 737 (1945) at 739 per Learned Hand J. 14 Putting to one side obvious typographical errors (see Bennion Statutory Interpretation (3rd ed, 1997) pp675-677), the court supplies words "omitted" by the draftsperson only in the sense that the words so included reflect in express, and therefore more readily observable, form, the true construction of the words actually used. In my opinion, the authorities do not warrant the court supplying words "omitted" by inadvertence per se. 15 Where the words actually used are not reasonably capable of being construed in the manner contended for, they will not be so construed. (McAlister (1990) 169 CLR 324 at 330; R v Di Maria (1996) 67 SASR 466 at 472-474). If a court can construe the words actually used by the Parliament to carry into effect the Parliamentary intention, it will do so notwithstanding that the specific construction is not the literal construction and even if it is a strained construction. The process of construction will, for example, sometimes cause the court to read down general words, or to give the words used an ambulatory operation. So long as the Court confines itself to the range of possible meanings or of operation of the text - using consequences to determine which meaning should be selected - then the process remains one of construction. 16 The construction reached in this way will often be more clearly expressed by way of the addition of words to the words actually used in the legislation. The references in the authorities to the court 'supplying omitted words' should be understood as a means of expressing the court's conclusion with clarity, rather than as a description of the actual reasoning process which the court has conducted. In all cases, what the court has done is to construe the words actually used in their total context. When the authorities are so understood, the additional words proposed in the present case are plainly impermissible. 17 The basic Australian authority on legislative inadvertence is Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 147 CLR 297. The statutory provision under consideration was to the effect that references in another section to a "company" apply in relation to a holding company, as if they were references to the holding company. Some of the references to a "company" in the other section, so applied, made perfect sense. If the reference in the particular paragraph under consideration was so applied, the effect of doing so was variously described as "incongruous" (Gibbs CJ at 305), "an anachronism" (Stephen J at 311) and "capricious and irrational" (Mason and Wilson JJ at 321). The legislative history of the provision indicated that the draftsperson had made a mistake. 18 This case has been explained as "in effect" reading words into the statute (Pearce & Geddes Statutory Interpretation in Australia (4th ed, 1996) par 2.16). I would not so describe it. What the court concluded was that in a particular paragraph, the word "company" would not be given the extended meaning which a subsection said that all such references should be given. In the full context of all the relevant provisions and of the legislative history - 'literal in total context' - the subsection which made provision for the extended meaning was read down so as not to apply to the specific reference in the paragraph. 19 As Deane J put it in the Full Federal Court, the effect of the construction was the same as if the words "where appropriate" had been introduced into the subsection. However, his Honour added: "The implication of words such as 'where appropriate', in a legislative direction to substitute words in another legislative provision so as to apply that legislative provision to circumstances to which it would not otherwise be applicable, does not involve doing violence to the words which Parliament has used. Where, as in the present case, the direction to substitute the different words is given in respect of a variety of different legislative provisions, the implication can be made almost as readily as can the implication of the qualification 'subject to a contrary intention' in a definition section". ( FCT v Cooper Brookes (Wollongong) Pty Ltd (1979) 25 ALR 511 at 516) 20 In the Full Federal Court, Brennan J reached the same result by reading down the special application of the word "company", so as to relate only to those references in the previous sections to a company which was enabled to take into account losses and not to a different kind of reference. It was Brennan J's formulation which found favour in the High Court. (See at 322 per Mason and Wilson JJ, 313 per Stephen J). 21 The terminology of Deane J - "implying" the words "where appropriate" - does, in my opinion, represent a construction of the words actually used. It does not differ from the reasoning of Brennan J, adopted by the High Court. However, the construction is given clear expression by the process which Deane J describes as 'implication', involving the 'addition' of words. Nevertheless, words are not inserted to perfect the intention of Parliament. The actual words are construed to conform with the intention, where they may reasonably be so construed. 22 Cooper-Brookes is not, in my opinion, authority for reading words into a statute. It is a case in which words of general application were read down. 23 The Barons of the Court of the Exchequer said as long ago as 1660: "And the judges of the law in all times past have so far pursued the intent of the makers of statutes that they have expounded Acts which were general in words to be but particular where the intent was particular". ( Stradling v Morgan (1660) 75 ER 305 at 312, see also at 315) 24 As Lord Simon of Glaisdale has put it: "Words and phrases of the English language have an extraordinary range of meaning. This has been a rich resource in English poetry (which makes fruitful use of the resonances, overtones and ambiguities), but it has a concomitant disadvantage in English law (which seeks unambiguous precision, with the aim that every citizen shall know, as exactly as possible, where he stands under the law". ( Stock v Frank Jones (Tipton) Ltd [1978] 1 WLR 231 at 236)

[28]

His Lordship has described the process as one of identifying the draftsperson's "linguistic register" ( Maunsell v Olins [1975] AC 373 at 291; Farrell v Alexander [1977] AC 59 at 84; Black-Clawson International Ltd supra at 645). 25 The process of reading down general words is a well established means of construction. (See eg Bowtell v Goldsborough Mort & Co. Ltd (1906) 3 CLR 444 at 456-457; Ex parte Walsh & Johnson; In re Yates (1925) 37 CLR 36 at 91-93; R v Wilson; Ex parte Kisch (1934) 53 CLR 234 at 244; Church of the Holy Trinity v United States 143 US 457 (1982) at 459; Tokyo Mart at 279; Smith v East Elloe Rural District Council [1956] AC 736 at 764-765; Bropho supra at 17-18. See my address "Statutory Interpretation: Identifying the Linguistic Register", the Sir Ninian Stephen Lecture at the University of Newcastle, 23 March 1999 to be published in the Newcastle University Law Review). 26 In Tokyo-Mart the regulation which fell to be construed was in this form: "The concentration of metal in a food …in the case of food in a dried …form, shall be determined with respect to the mass of the food after dilution". 27 On a literal construction this would extend to all cases of food in a dried form, irrespective of whether it was usually, or ever, consumed in a diluted form. The court read down the generality of the words. 28 The language of the regulation itself, employed general words, eg "dilution", "reconstitution", which indicated that "the draftsman intended that (the regulation) would be filled out and extended according to implications and unexpressed assumptions" (282E). 29 Mahoney JA, with whom McHugh and Clarke JJA agreed, after quoting Lord Diplock from Wentworth Securities v Jones [1980] AC 74, referred to the court supplying "omitted words", without identifying any such words. Throughout, however, his Honour emphasised that what was involved was a process of construction (eg 282G, 283B). The "omitted words" were, as I understand his Honour's reasoning, words which would indicate in an express form, that the actual text which employed words of apparently general application had to be construed in a more restrictive way. 30 In Bermingham supra, the Court was concerned with a statute making provision for the transfer of prisoners between States. The section in issue allowed credit for remissions in the transferee State, to which a prisoner would have been eligible in the transferor State. In that case the transferred prisoner had earned remissions from the minimum term of imprisonment. (Then still referred to in New South Wales as a non-parole period). The relevant provision referred to "any remission of his sentence of imprisonment". The issue before the court was whether this applied only to the head sentence or whether it also applied to the minimum term. The difficulty arose because the relevant subsection was premised on the application of another section which dealt only with head sentences. 31 One purpose of the Act was to ensure that prisoners were not disadvantaged after transfer. The words "sentence of imprisonment" were construed to encompass both the minimum term and the head sentence (299B-C; 300C). Although the court used the language of making good an "omission", referring to Tokyo-Mart, it emphasised that what it was doing was construing the words actually used - "sentence of imprisonment" - so that they included the "minimum term" (299D, 300C). This gave an ambulatory operation to the actual text. 32 The two techniques of construction to which I have referred - reading down general words and giving words an ambulatory construction - are based on the text. In my opinion, there is no warrant for supplying omitted words, unless the result of some such recognised technique of construction can be so described. 33 It is not, in my opinion, appropriate to take an expression of intention from extrinsic materials to supply the omission by the draftsperson, when the result cannot reasonably be deduced from the words actually used by a recognised technique of construction. 34 As McHugh J has put it: "Extrinsic material cannot be used to construe a legislative provision unless the construction of the material is 'reasonably open' ( CIC Insurance Ltd (1997) 187 CLR 384 at 408). Even if extrinsic material convincingly indicates the evil at which a section was aimed, it does not follow that the language of the section will always permit a construction that will remedy that evil. If the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances". ( Newcastle City Council v GIO General Ltd at 113) 35 The clearest example of this approach is R v Bolton; Ex parte Beane. The issue in that case was whether a statutory provision concerned with "visiting forces" applied to deserters from the armed forces of the United States. Mason CJ, Wilson and Dawson JJ said: "…the second reading speech by the Minister … quite unambiguously asserts that Part III relates to deserters and absentees whether or not they are from a visiting force. But this of itself, while deserving serious consideration, cannot be determinative; it is valuable as an aid to interpretation. The words of a Minister must not be substituted for the text of the law. Particularly is this so when the intention stated by the Minister but unexpressed in the law is restrictive of the liberty of the individual. It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the court remains clear. The function of the court is to give effect to the will of Parliament as expressed in the law". (518) 36 In the present case, the various references to subpoenas in the extrinsic materials, set out in the judgment of James J, are in the same position as the unambiguous assertion of the Minister considered in R v Bolton; Ex parte Beane. 37 The areas of operation of the two subject matters - ancillary processes and evidence - overlap but are not coextensive. They are, accordingly, distinct for relevant purposes. The words of the statute cannot, in my opinion, be strained to remedy the alleged mistake by Parliament. The words "adduced in evidence" cannot reasonably be extended to embrace production pursuant to a subpoena. "[T]his is a field upon which the Evidence Act does not enter." Northern Territory of Australia v GPAO (1999) HCA 8 at [17] and see [135, 199, 254].

[29]

Derivative Application 38 In R v N, NSWCCA 21 July 1998, it appears from my judgment that: "When the matter came on for hearing today the effect of his Honour's application of the decision in Telstra Corporation v Australis Media Holdings (1997) 41 NSWLR 147 was acknowledged to be superseded by the introduction in the District Court Rules of Pt 29 r1 …". 39 It is clear that Part 29 relates only to civil cases. Accordingly, the reasoning in R v N should be regarded as per incuriam. 40 I agree with James J that, in this regard, R v N is wrong. 41 Subpoenas in a criminal case must serve a legitimate forensic purpose. Whether or not a document may be adduced in evidence does not exhaust the list of such purposes. (See eg Waind v Hill (1978) 1 NSWLR 377 at 381D-385D; Saleam (1989) 16 NSWLR 14 at 22). 42 Stated at this level of generality, the common law rule is not affected by the Evidence Act 1995. A change in what is admissible in evidence will, of course, reduce the list of legitimate purposes. But admissibility does not exhaust the list. 43 In this case all parties accepted that, notwithstanding the extraordinarily broad terms of the subpoenas, the appellant had established a legitimate forensic purpose. The precise nature of that purpose was not specifically identified, despite the clear line of authority that it should be. (Saleam (1989) 16 NSWLR 14 at 18; Carroll v Attorney-General (NSW) (1993) 70 ACrimR 162 at 181-182; Attorney General (NSW) v Stuart (1994) 34 NSWLR 667 at 690; Registrar v Tastan (1994) 75 ACrimR 498 at 504-505). 44 In M v L (1999) 1 NZLR 747, the New Zealand Court of Appeal considered a claim for privilege of notes made by doctors and counsellors of sexual assault victims who, as plaintiffs, had discovered the notes as being within their power. Rule 307 of the High Court Rules provided: "… the Court may, unless the document is privileged from production, order that party … to produce the document for inspection …" 45 Section 35 of the Evidence Amendment Act (No 2) 1980 (NZ) provided that the Court could in its discretion excuse a witness from answering a question or producing a document on the grounds of breach of confidence. The Court of Appeal held that the section only applied to witnesses. It did not apply to pre-trial discovery. However, the Court gave the section a derivative application in determining how the discretion under Rule 307 should be exercised (M v L at 762). 46 M v L is of little assistance in the present case. The identification of a "legitimate forensic purpose", does not involve the exercise of a discretion by the Court. Issues of judgment will arise in the context of assessing the propounded legitimate forensic purpose. However, such issues were precluded in the present case by the express concession on this point. Issues which may have been considered in terms of "legitimacy" of purpose were, by reason of the concession, treated as part of the balancing process. In view of the concession, it is not appropriate for this Court to consider the issue of legitimate purpose as it appears on the materials before the Court. 47 On 14 May 1999, the High Court of Australia gave special leave in the case of Esso Australia Resources Ltd v Commissioner of Taxation (1998) 159 ALR 664. The issue that has divided the courts for some years concerning the derivative application of the Evidence Act (1995) will now be authoritatively determined. 48 In Akins v Abigroup Ltd (1998) 43 NSWLR 539 the Court of Appeal held that such derivative application was appropriate, in part in order to follow the Full Federal Court in Adelaide Steamship Co Ltd v Spalvins (1998) 81 FCR 360 (Akins at 547). In Esso Australia, by majority, the Full Federal Court overruled Adelaide Steamship v Spalvins. The Court of Appeal has refused leave to reopen Akins v Abigroup (Amalgamated Televisions Services Pty Ltd v Marsden [1999] NSWCA 97 at [13]). 49 This Court is not technically bound by decisions of the Court of Appeal. (See Masters (1992) 26 NSWLR 450 at 472; Hookham (1993) 31 NSWLR 381 at 390-391). However, this Court is comprised of members of the Supreme Court of New South Wales, including members of the Court of Appeal. It should generally treat judgments of the Court of Appeal as if they were judgments of this Court. The circumstances in which this Court will depart from its own decisions are limited. (See Jurisic (1998) 45 NSWLR 209 at 214). 50 The earlier authorities on derivative use are concerned with legal professional privilege. They do not purport to lay down a general rule that whenever the Evidence Act restricts the tender of a document, there is a corresponding restriction on ancillary processes. 51 Specifically, Akins v Abigroup does not determine the present case. In that case, the first reason given by Mason P for a derivative application was: "The doctrine of legal professional privilege is more than a rule of evidence. It is a fundamental common law doctrine that furthers the rule of law". (546) 52 There is no equivalent to this proposition applicable to a "protected confidence" within s126H. There is no "common law doctrine" with respect to such matters at all. In this context the "derivative use" argument can only be an argument for accepting "protected confidences" as falling within the scope of public interest immunity or for creating a new category of privilege.

[30]

Public Interest Immunity 53 Public interest immunity is a field which has been plagued with terminological confusion. The use of "Crown privilege" has been abandoned. The confusion has not diminished. The words "public interest immunity" are sometimes treated as if they extended to any circumstance in which exclusion should be supported on the grounds of public policy - and in that sense involve a 'public interest'. They were so treated in the submissions in this case. The terminology of "public interest" should not be permitted to extend the basis of the doctrine. 54 "Public interest immunity" is concerned with, and the terminology should be confined to, the conduct of governmental functions. Section 130 of the Evidence Act 1995 reflects this proposition by use of the formula: "that relates to matters of state". 55 The 'public interest', to which this immunity refers, requires a dimension that is governmental in character. The references to "public interest" in the frequently cited passages from the case law, should be so understood (eg Sankey v Whitlam (1979-80) 142 CLR 1 at 38-39, Alister v R (1983-84) 143 CLR 404 at 412). These passages did not intend to encompass every situation in which it could be said that some form of public policy could be served by non-disclosure. In my opinion, it is not correct to treat public interest immunity as if it were a "residual category" of circumstances in which courts limit access to information on the basis of weighing the public interest in disclosure against any factor that can be described as a "public interest". (As does Ligertwood Australian Evidence (3rd ed, (1998) paras 5.96, 5.104; c/f Cross on Evidence (5th Australian ed. 996) paras 27030, 27055, 27080). 56 The references in the case law to the proposition that the categories of public interest are not closed, need to be similarly confined. (See D v National Society for the Prevention of Cruelty to Children [1978] AC 171 at 230; Sankey v Whitlam at 60; Rogers v Home Secretary (1973) AC 388 at 412F; R v Chief Constable of West Midlands Police; Ex parte Wiley [1995] 1 AC 274 at 305). Such references should be understood in the sense identified by Mason J in Australian National Airlines Commission v The Commonwealth (1975) 132 CLR 582 at 591. His Honour referred to what was then still called "Crown privilege" and added: "…it would be an error to regard the categories of documents which attract privilege as necessarily closed. As time passes it is inevitable that new classes of documents important to the working of government will come into existence and that detriment to the public interest may occur in circumstances which cannot presently be foreseen". (emphasis added) 57 Public interest immunity arises because of "the need to safeguard the proper functioning of the executive arm of government and of the public service"(emphasis added), to use the formulation which Stephen J in Sankey v Whitlam at 56 described as "the reasons customarily given" for the immunity. This formulation was adopted by Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ in Commonwealth v Northern Land Council (1992-93) 176 CLR 604 at 619, and described by their Honours as "the ordinary reasons supporting a claim for public service immunity". 58 The dividing line between private and public interests is not always easy to draw. Public institutions - relevantly, in the present case, hospitals - provide private services, indistinguishable from the same services provided by private institutions. On the other hand, significant schemes of public regulation are conducted by private institutions, increasingly so over recent years. 59 Similar issues have arisen in the sphere of administrative law, in order to determine whether particular organisations are subject to judicial review on the basis of public law doctrines, such as denial of natural justice. (See the authorities discussed in Aronson and Dyer Judicial Review of Administrative Action (1996) pp130-138. I have referred to these issues in my address "Foundations of Administrative Law", the 1998 R.N. Spann Oration published in (1999) 58 Aust. J. Public Administration 3, and (1999) 4 The Judicial Review 69). 60 The same difficulty of identifying a boundary arises with claims of public interest immunity. The identity of the organisation is not decisive, as was clearly established in D v NSPCC, to which Beazley JA makes detailed reference. In that case the public regulatory role of the private association was clearly established. After referring to the police informer category, Lord Hailsham LC added: "Once, however, it is accepted that information given to the police in the instant case would have been protected, it becomes, in my judgment, manifestly absurd that it should not be accorded equally to the same information if given by the same informant to the local authority (who would have been under a duty to act on it) or to the appellant society, to whom, according to the undisputed evidence, ordinary informants more readily resort …. But the police, the local authority and the society stand on the same footing. The public interest is identical in relation to each". (229-230); see also at 219A-C, F per Lord Diplock and 241F per Lord Simon of Glaisdale.) 61 Although there are other strands in the reasoning, this was the decisive consideration. Nothing in D v NSPCC qualifies the emphasis on the significance of the public element as set forth in Marks v Beyfus (1890) 25 QBD 494 especially at 496.10-497.3 and 498.3. (See Science Research Council v Nassé [1980] AC 1028 at 1087-1088; Eagles "Evidentiary Protection for Informers - Policy or Privilege" (1982) 6 Crim LJ 175 at 180-184). The expansive remarks of Lord Edmund Davies in D v NSPCC at 245 have not been adopted. 62 An example of the application of this proposition is that professional disciplinary bodies have been found to fall within the scope of public interest immunity. This is because these private bodies, in the relevant respect, perform a governmental - indeed generally statutory - function. (See Borg v Barnes (1987) 10 NSWLR 734; Law Institute of Victoria v Irving [1990] VR 611; Legal Services Commission v Trotter (1990) 54 SASR 74; Finch v Grieve (1991) 22 NSWLR 528). 63 To similar effect is the reasoning - although differing in its application to the specific statutory scheme - of Bowen CJ and Toohey J with respect to Aboriginal information supplied to the Sacred Sites Authority. (See Aboriginal Sacred Sites Authority v Maurice (1986) 20 FCR 104 at 109-110, 129-130; c/f 114-115 per Woodward J who took the broader approach). 64 In his judgment, Freeman DCJ, in the alternative to the derivative application of Division 1B, accepted the public interest immunity claim in the present case. His Honour appears to have accepted the submission put to him that: "The interest … is a matter touching the governance of New South Wales in that it is necessary to protect confidentiality in order to ensure that the business of the Department of Health can successfully be conducted". 65 The "business of the Department of Health" to which reference is made, consists of the provision of sexual counselling services to individuals. This is not governmental in character, even if it is supplied by a public institution. In submissions to this Court, counsel for the Health Service expressly abjured the proposition that the privilege was restricted to governmental health services. In this regard the submissions on appeal appear to differ from those before Freeman DCJ. On this approach, in my opinion, the issue is whether a new category of privilege should be created, not whether public interest immunity applies. 66 The evidence in support of this matter is set out in para 10 of Dr MacGregor's affidavit, quoted in James J's judgment. This focussed on the detriment to the "public interest" from discouraging sexual assault victims "endeavouring to rehabilitate themselves". This detriment does not fall within public interest immunity. It can be protected, if at all, only by creating a new category of privilege. 67 The only governmental public interest suggested by Dr MacGregor was that sexual assault victims may be discouraged "possibly from reporting sexual assaults". The mechanism for this link was not specified with any precision. The use of the qualification "possibly" deprives the argument of force, even if Dr MacGregor's opinion on such matters were entitled to weight. There is no evidence before the Court which suggests that this effect, if any, is of sufficient significance to warrant its acceptance as an impediment to the administration of justice. 68 Subsequently to completing the above analysis, I have read the judgment of Beazley JA. Her Honour refers to an article by Cossins and Pilkington "Balancing the Scales" (1996) UNSWLJ 222, particularly an extract from comments by an employee of the Sydney Rape Crisis Centre, quoted therein, in what is described as a personal communication with the authors of the article. I am unable to agree with her Honour that material of this character, on which the Court did not receive submissions, is able to overcome the inadequacy of the material before the Court. I refer to this inadequacy further below under the heading of Privilege. As I indicate there, no attempt was made to present to this Court in a systematic way a comprehensive and balanced body of evidence and additional material on this subject. The Court is not in a position to develop the common law with the requisite degree of confidence. 69 There are difficult issues involved in the formulation of public policy on these matters. On the one hand, traditional legal procedure, including criminal procedure, has been shown to have considerable inadequacies in the treatment of sexual assault victims, including their treatment as witnesses which, almost invariably, they must become. On the other hand, counselling or therapy may, in certain circumstances, distort memory in a way which, it has strongly been suggested, affects the reliability of allegations of sexual assault. I refer particularly to the debate about the recovery of repressed memory. I am not prepared to resolve such difficult issues on the basis of the materials before the Court. 70 In any event, there is another reason for the Courts to exercise restraint in developing the common law at this time. Parliament has been active on this very subject very recently. If, as appears likely, Parliament did intend to extend Division 1B to ancillary processes, the defect can be very easily remedied. Furthermore, the precise formulation adopted in s126H employs concepts such as "substantial probative value" and "substantially outweighed by", which pose a different inquiry from that involved in a public interest immunity balancing exercise. This is a matter which should be left to Parliament to resolve. 71 I note that in the present case, Freeman DCJ applied what he called "the calculus required in s126H3", namely the test of "substantial probative value". This was based on his Honour's acceptance of the derivative application argument. His Honour did not undertake the less stringent balancing exercise required for public interest immunity.

[31]

Privilege 72 All claims of privilege operate as a fetter on the discovery of truth. This is of particular significance where, as here, the liberty of the subject is at stake. 73 As Knight Bruce VC said: "The discovery and vindication and establishment of truth are main purposes certainly of the existence of Courts of Justice; still, for the obtaining of these objects, which, however valuable and important, cannot be usefully pursued without moderation, cannot be either usefully or creditably pursued unfairly or gained by unfair means, not every channel is or ought to be open to them. The practical inefficacy of torture is not, I suppose, the most weighty objection to that mode of examination …Truth, like all other good things, may be loved unwisely - may be pursued too keenly - may cost too much." ( Pearse v Pearse (1846) 63 ER 950 at 957). 74 It is because truth can cost too much, that legal professional privilege prevails even in the case of a subpoena issued on behalf of an accused person in criminal proceedings with respect to documents which may establish the innocence of the accused (Carter v Northmore Hale Davey and Leake (1995) 183 CLR 121). 75 The starting point is that the search for the truth requires all oral and documentary information, which is directly or indirectly relevant or material, to be available. As Rich J has put it: "The paramount principle of public policy is that truth should always be accessible to the established courts of the country." ( McGuinness v Attorney-General (Vic) (1940) 63 CLR 73 at 87). 76 However, in recognition of the fact that truth may sometimes cost too much, the common law recognises a specific list of privileges. This list has been modified by statute. 77 Such privileges include legal professional privilege, the privilege against self incrimination, clergy-communicant privilege, "without prejudice" privilege. (See eg McNicol Law of Privilege (1992) pp7-11; also Lord Simon of Glaisdale in D v NSPCC supra at 231-233). Each category reflects a different form of public policy and, in that sense, represents a "public interest". However, each is a distinct category with its own disparate incidents. 78 As set out in Beazley JA's judgment, a number of Australian courts have had occasion to consider the issue of communications between sexual assault victims and counsellors, generally indicating a willingness to accept the significance of the maintenance of confidentiality. (Relationships Australia v Pasternack (1996) 133 FLR 462; Howe v South Australia & Belperioi (1998) 196 LSJ 182; R v Bull (1997) 17 SR(WA) 364. Although each of the cases refers, inappropriately in my opinion, to public interest immunity, they nevertheless contain reasoning pertinent to determining the need for a new category of privilege. (See Pasternack at 472-473; Bull at 366; Howe at 11). 79 In M(A) v Ryan (1997) 143 DLR (4th) 1 the Supreme Court of Canada acknowledged a privilege in the case of a psychiatrist providing sexual assault counselling. McLachlin J delivered the judgment of the Supreme Court. Her Ladyship said: "…the law of privilege may evolve to reflect the social and legal realities of our time. One such reality is the laws increasing concern with the wrongs perpetrated by sexual abuse and the serious effect such abuse has on the health and productivity of the many members of our society it victimizes. Another modern reality is the extension of medical assistance from treatment of its physical effects to treatment of its mental and emotional aftermath through techniques such as psychiatric counselling." [21] 80 Her Ladyship was applying Canadian authority which had adopted the approach propounded by Wigmore as to the circumstances in which the common law will recognise new categories of privilege, as follows: "… four fundamental conditions may be predicated as necessary to the establishment of a privilege against the disclosure of communications between persons standing in a given relation: 1 the communications must originate in a confidence that they will not be disclosed; 2 this element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties; 3 the relation must be one which in the opinion of the community ought to be sedulously fostered; 4 the injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.

[32]

These four conditions being present, a privilege should be recognised; and not otherwise." ( Wigmore on Evidence (3rd ed, 1961) vol 8 para 2285). 81 These four conditions had been adopted, in terms, in earlier decisions of the Canadian Supreme Court to which her Ladyship referred (Slavutych v Baker (1975) 55 DLR (3rd) 224 at 228; R v Gruenke (1991) 3 SCR 263 (SCC) at 286. In the latter case, the Supreme Court was at pains to say that the Wigmore criteria were not "carved in stone" but provided a "general framework within which policy considerations and the requirements of fact finding can be weighed and balanced on the basis of their relative importance in the particular case before the court." (at 290)) 82 In M(A) v Ryan, McLachlin J went through each of the four criteria and indicated how they were satisfied in the case of sexual assault communications [25-29]. Of significance to the outcome of the case was the reference by her Ladyship to the developing case law under the Canadian Charter of Rights and Freedoms, specifically the right to privacy [21-23 and 30]. 83 With respect to Wigmore's second and third criteria, McLachlin J said: "The second requirement - that the element of confidentiality be essential to the full and satisfactory maintenance of the relation between the parties to the communication - is clearly satisfied in the case at bar … Confidentiality is essential to the continued existence and effectiveness of the therapeutic relations between a psychiatrist and a patient seeking treatment for the psychiatric harm resulting from sexual abuse. Once psychiatrist-patient confidentiality is broken and the psychiatrist becomes involved in the patient's external world the 'frame' of the therapy is broken. At that point, it is Dr Parker's practice to discontinue psychotherapy with the patients. The result is both confusing and damaging to the patient. At a time when she would normally find support in the therapeutic relationship, as during the trial, she finds herself without support. In the result, the patient's treatment may cease, her distrust must be exacerbated, and her personal and work relations be adversely affected. ……… The third requirement - that the relation must be one which in the opinion of the community ought to be sedulously fostered - is equally satisfied. Victims of sexual abuse often suffer serious trauma, which, left untreated, may mar their entire lives. It is widely accepted that it is in the interests of the victim in society that such help be obtained. The mental health of the citizen, no less than its physical health, is a public good of great importance. Just as it is in the interest of sexual abuse victim to be restored to full and healthy functioning, so is it in the interest of the public that she take her place as a healthy and productive member of society." [25 and 27] 84 Some of this reasoning is based on evidence which is not replicated in the evidence before the Court. Nevertheless, the passages quoted contain reasons appropriate to be considered in determining whether a similar privilege should be acknowledged in Australia. However, I am of the opinion that the approach to determining these matters, propounded by Wigmore and adopted in Canada, is not open to an intermediate court of appeal in Australia. 85 The position in Australia with respect to the recognition of new categories of privilege is, in my opinion, as set forth by Sir Owen Dixon in McGuinness v The Attorney General of Victoria (1939-40) 63 CLR 73 at 102-103 where his Honour said: "…the law was faced at a comparatively early stage of the growth of the rules of evidence with a question how to resolve the inevitable conflict between a necessity of discovering the truth in the interests of justice on the one hand and on the other the obligation of secrecy or confidence which an individual called upon to testify may in good faith have undertaken to a party or other person. Except in a few relations where paramount considerations of general policy appeared to require that there should be a special privilege, such as husband and wife, attorney and client, communications between jurors, the councils of the Crown and State secrets, and by statute, physician and patient and priest and penitent, an inflexible rule was established that no obligation of honour, no duties of non-disclosure arising from the nature of a pursuit or calling, could stand in the way of the imperative necessity of revealing the truth in the witness box . Claims have been made from time to time for the protection of confidences to trustees, agents, bankers, and clerks, amongst others, and they have all been rejected." (Emphasis added) 86 It is well established that confidentiality is not, of itself, a separate category of immunity: D v NSPCC at 218A-G, 230D, 237F-G, 239A, 242D; McGuinness at 102-103; Sankey v Whitlam supra at 42-43). 87 The common law has accepted that particular relationships of confidence are of such significance that they should be recognised in this way. The common law rule forbidding spouses from testifying for or against each other was of that character. There was some confusion between compellability and privilege in this regard. (See eg McNicholl supra chapter 4). 88 However, the common law refused to afford privilege to exceptional sensitive confidential relationships. To many people, even in this secular age, and to the overwhelming majority of people in times past, there was no more intimate or personal communication than that which occurred with a priest. No such privilege was recognised until statutory modification. (See Wilson v Rastall (1792) 100 ER 1283 at 1286-1287; Normanshaw v Normanshaw and Measham (1893) 69 LT 468; McNicholl supra chapter 5). 89 Similarly, the doctor/patient, including psychiatrist/patient, relationship was not acknowledged, despite the level of intimacy often involved. Dutchess of Kingston's Case (1771-1777) 20 St Tr 355 at 572-573; Wilton v Rastall (1792) 4 Term Rep 753 at 759-760; Broed v Pitt (1823) 3 CCP 518 at 579; Greennough v Gaskell (1833) 1 My & K; (1833) 39 ER 618 at 620-621; Greenlaw v King (1838) 1 Beav 137 at 145, Russell v Jackson (1851) 68 ER 558 at 559-560; Wheeler v Le Marchant [1881] 17 ChD 675 at 681; R v Gibbons (1823) 1 C & P 97; Garner v Garner (1920) 36 TLR 196 at 197; Nuttall v Nuttall and Tuyman (1964) 108 SolJ 605; McNicholl supra chapter 5). 90 It is on the basis of authorities of this character that, by a process of induction, Dixon J stated the common law rule. The application of that rule determined the specific case of a claim for privilege for journalist sources. (McGuinness supra at 102-105; John Fairfax & Sons Ltd v Cojuango (1988) 165 CLR 346 at 354-356). However, his Honour's reasoning was not confined to this category. 91 His Honour referred to an "inflexible rule … that no obligation of honour, no duties of non disclosure … could stand in the way … of revealing the truth". The specific instance of a journalist's source was derived by a process of deduction from a general common law rule. His Honour's statement of that rule is formulated at a level of generality which would determine the present case. The reasoning of Dixon J is not, in terms, replicated in the other judgments in McGuinness. However, it does represent, in my opinion, the common law in Australia. An intermediate appellate court should be slow to develop a new category of privilege. It is not, I believe, open to such a court to approach this issue on the basis of the Wigmore test as adopted in Canada. 92 In any event, this is not an appropriate occasion on which to establish this new category of privilege. First, it has not been demonstrated that the privilege propounded has attained the requisite level of community acceptance, as a special case entitling treatment that differs from other confidential relationships. Secondly, the evidentiary material presented to the Court is much too limited to take such a significant step. 93 The recognition of a new category of privilege requires the formulation of public policy by the courts, within the confines of the proper role of the courts. It is only appropriate for the courts to recognise a category of public policy which is capable of precise statement, and which reflects so widely held an opinion, that the Court's reasoning can be described in terms of 'recognition' rather than 'creation'. 94 As Sir Isaac Isaacs said: "The 'public policy' which a court is entitled to apply as a test of validity to a contract is in relation to some definite and governing principle which the community as a whole has already adopted either formally by law or tacitly by its general course of corporate life, and which the courts of the country can therefore recognise and enforce. The court is not a legislator: it cannot initiate the principle; it can only state or formulate it if it already exists:" Wilkinson v Osborne (1915) 21 CLR 89 at 97. 95 As Sir Frederick Jordan said: "… the phrase 'public policy' appears to mean the ideas which for the time being prevail in a community as to the conditions necessary to ensure its welfare; so that anything is treated as against public policy if it is generally regarded as injurious to the public interest." 96 His Honour then set out the passage from Wilkinson v Osborne I have quoted and continued: "It is well settled that a contract is not enforceable if its enforcement would be opposed to public policy: Mogul Steamship Company v McGregor, Gow & Co [1892] AC 25 at 39, 51. Public policy is not, however, fixed and stable. From generation to generation ideas change as to what is necessary or injurious, so that 'public policy' is a variable thing. It must fluctuate with the circumstances of the time': Naylor, Benzon & Co v Krainische Industrie Gesellschaft [1918] 1 KB 331 at 342. New heads of public policy come into being, and old heads undergo modification."

[34]

His Honour went on to say: "The contemporary values which justify judicial development of the law are not the transient notions which emerge in reaction to a particular event or which are inspired by a publicity campaign conducted by an interest group. They are the relatively permanent values of the Australian community. Even if the perception of contemporary values is coloured by the opinions of individual judges, judicial experience in the practical application of legal principles and the coincidence of judicial opinions in appellate courts provide some assurance that those values are correctly perceived." (319) 100 In Breen v Williams (1995-96) 186 CLR 71 at 115, Gaudron and McHugh JJ, in the course of rejecting the development of the common law to establish a patient's right of access to medical records, said: "Advances in the common law must begin from a baseline of accepted principle and proceed by conventional methods of legal reasoning. Judges have no authority to invent legal doctrine that distorts or does not extend or modify accepted legal rules and principles. Any changes in legal doctrine brought about by judicial creativity, must 'fit' within the body of accepted rules and principles. The judges of Australia cannot, so to speak, 'make it up' as they go along. It is a serious constitutional mistake to think that the common law courts have authority to 'provide a solvent' ( Tucker v US Department of Commerce (1992) 958 F 2d 1411 at 1413) for every social, political or economic problem. The role of the common law is a far more modest one." 101 The contemporary Australian debate on the permissible scope of judicial development of the common law, finds its origin in a seminal article by his Honour Justice McHugh, "The Law Making Function of the Judicial Process" (1988) 62 ALJ 15. His Honour has summarised subsequent literature in "The Judicial Method" (1999) 73 ALJ 37. 102 There have been substantial changes in community attitudes to sexual assault victims over recent decades. Both legislative and judicial change has occurred in the conduct of legal proceedings involving allegations of sexual assault. With respect to sexual counselling records, it is not clear to me that this process has yet reached a stage where it can be said that it is sufficiently definite, widely accepted and permanent, for the purpose of recognising, as distinct from creating, a new category of privilege. 103 The Court was referred to the Second Reading Speech of the Honourable J W Shaw QC, Attorney General for New South Wales, for the Evidence Amendment (Confidential Communications) Act 1997, which inserted Division 1B into the Evidence Act 1995. 104 This speech indicates some of the reasons why publication of communications of this character may have adverse consequences. The use which this Court can make of arguments put in parliamentary debate is extremely limited. Of itself it is not sufficient for the purpose of changing a public policy pursuant to the approach I have adumbrated above. The same is true of the legislation in this State and Victoria, and the bill in South Australia as set out in the judgment of Beazley JA. The legislation does not yet indicate the level of national unanimity that is required. 105 Indeed, when determining whether or not the common law should, for the first time, recognise a new category of privilege, the extent and recency of detailed consideration by Parliament given to the very matters suggested is relevant. Where Parliament has shown itself prepared to intervene, the Courts should be slow to rectify a perceived social ill. 106 Restraint is particularly appropriate where the relevant area of policy requires fine tuning of the kind required here. As I have indicated in my reasons on the subject of public interest immunity, the precise formulation of the facts and matters which could overcome the privilege set out in s126H is quite distinctive. Concepts such as "substantial probative value" and "substantially outweighed by" would not necessarily be reflected in a common law test. 107 This is not a case in which "it has been virtually impossible for legislatures to devote sufficient sitting time to the continual reform of the law". (McHugh J supra 62 ALJ at 116). In such a context the courts should pursue the analogical application of statutes with greater than usual caution. 108 There is much to commend the approach propounded by Justice Scalia in his dissenting judgment in the United States Supreme Court, with which Chief Justice Rehnquist agreed: "Effective psychotherapy undoubtedly is beneficial to individuals with mental problems, and surely serves some larger social interest in maintaining a mentally stable society. But merely mentioning these values does not answer the critical question: Are they of such importance, and is the contribution of psychotherapy to them so distinctive and is the application of normal evidentiary rules so destructive to psychotherapy, as to justify making our federal courts occasional instruments of injustice?" ( Jaffee v Redmond (1996) 135 L Ed 2d 337 at 352). 109 I would add, in the present context: Are communications between sexual assault victims and counsellors entitled to particular consideration, differing from other confidential relationships involving matters of personal intimacy? 110 The Court does not have the material which would enable it to answer these questions. It is not in a position to formulate a new public policy. 111 The actual evidence before the Court is limited. First, there is a brief report from a clinical psychologist concerned with the impact of disclosure on the particular complainant in this case. There is also a report from a treating doctor. Plainly this material is relevant to a balancing exercise but, other than as giving some specific examples of the possible adverse effects of disclosure, is of no assistance for the determination of a new public policy in this respect. 112 The substantive affidavit in this regard is that of the Deputy Director General, Operations, of the Department of Health. The relevant evidence is primarily set out in pars 8, 9 and 10 which are fully quoted in the judgment of James J. 113 The evidence contained in these three paragraphs is, for the purposes of establishing a new category of privilege, perfunctory. No doubt it was primarily directed to a balancing exercise in the circumstances of this case. It does not, however, reflect the depth and quality of expert opinion which the Court should have available to it in order to determine a public policy of such significance. 114 Affidavits in support of claims of public interest immunity have often been criticised for their amorphous quality. General conclusory assertions are not acceptable. (See eg Sankey v Whitlam supra at 96 per Mason J). 115 Before a new public policy is to be recognised, the supporting material would need to be of a qualitatively different order to that presented in the case. At the least, the Court would expect a systematic review of expert literature on the significance of confidentiality in the counselling relationship. The Court would also expect a review of an expert body of opinion establishing why sexual counselling services ought to be treated differently from other counselling services. In the seminal case before the United States Supreme Court, both the American Psychiatric Association and the American Psychological Association set out relevant studies in their amici curiae briefs filed with the Court. (See Jaffee v Redmond at 345 fn 9). 116 The Court would need to be satisfied that the material presented to the Court represented the full range of expert opinion on the relevant matters and that, where there were divergences in that expert opinion, the differences had been properly tested. The Court would also need to be satisfied that the materials before the Court covered the full range of relevant matters, and was not confined to the narrow specialisations immediately relevant, in order to overcome the possibility of special pleading that sometimes arises from a mixture of self-interest and obliviousness to considerations external to the specific field of expertise. 117 The submissions to the Court which sought to distinguish the case of sexual assault victims from other patient-doctor relationships, including psychiatrist/psychologist-patient relationships, were based on assertions from the bar table about the "peculiar trauma" which victims of sexual assault suffer. 118 The Court must treat with caution the creation of a new category of privilege which may impede the determination of truth in a particular case. This is especially so when the specific category of privilege does not appear to be capable of being restricted in the manner for which the submissions contend - in this case the restriction to communications with sexual assault victims only. 119 In a case in which the State of New South Wales has funded two separate legal teams to argue the case in favour of non-disclosure - the Attorney General and the Department of Health were separately represented - the Court would expect that the State would have ensured that the contrary view was also put before the Court in a systematic way. 120 None of this happened in this case. The material before the Court was in an exceptionally narrow compass. 121 It is plain that there is a considerable body of additional material that can be put before the Court. For example, the assertion that the susceptibility of communications with counsellors to exposure in legal proceedings will make it less likely for victims to obtain professional assistance, is an empirical statement capable of investigation. There are studies which suggest that no such consequence occurs to any significant degree. (See Shuman & Weiner "The Privilege Study: An Empirical Examination of the Psychotherapist-Patient Privilege" (1982) 60 North Carolina Law Review 893; Weiner & Shuman "Privilege - a Comparative Study" (1984) 12 Journal of Psychiatry and Law 373; Schuman, Weiner and Pinard "The Privilege Study (Part III): Psychotherapist-Patient Communications in Canada" (1986) 9 International Journal of Law & Psychiatry 393). 122 Cases which raise policy issues for the Court should not be allowed to become Law Reform Commission style inquiries. (See Davies "The Judiciary - Maintaining the Balance" in Finn (ed) Essays on Law and Government vol 1 (1995) pp283-285; Doyle "Implications of Judicial Law Making" in Saunders (ed) Courts of Final Jurisdiction: The Mason Court in Australia (1996) pp283-285; McHugh J supra 73 ALJ at 43 ff; see also my discussion in Henry [1999] NSWCCA 111 at [59-63]). However, before the Court establishes a new category of privilege it needs to be satisfied that some form of systematic attempt to marshal relevant evidence has occurred. Nothing of that character was done in the present case. 123 In my opinion the appeal should be allowed. I agree with the orders proposed by James J. 124 BEAZLEY JA: I have had the advantage of reading the judgment of James J. I agree with his Honour's judgment save in respect of the question of whether the documents subject of the subpoena are protected from disclosure by the doctrine of public interest immunity.

[35]

Public Interest Immunity - General Principles 125 The principle of public interest immunity and the rules which govern its application may, in the first instance, be stated as follows. The doctrine protects from compulsory disclosure in court proceedings (and other non-curial proceedings) evidence (usually in, although not confined to, documentary form) which is or may be relevant, if its disclosure would be prejudicial or injurious to the public interest: see Sankey v Whitlam (1978) 142 CLR 1 per Gibbs J at 38; Conway v Rimmer [1968] AC 910; Suzanne McNicol, Law of Privilege, Law Book Company, Sydney, 1992 at p 375. The principle is an exception to the primary tenet of our legal system that relevant evidence is admissible and should not be withheld: see D v National Society for the Prevention of Cruelty to Children [1978] AC 171 per Lord Hailsham at 223 ('D v NSPCC'). 126 Three specific rules have developed governing the application of the principle. First, the immunity cannot be waived; secondly, it is not dependent on a claim being made by the parties; thirdly, secondary evidence cannot be given of evidence the subject of the claim. The rules themselves are the defining difference between immunity and privilege. See generally McNicol, chapter 1. 127 Claims for immunity are traditionally categorised either as "class interest" claims - that is, documents of a class which should not be produced - or as attracting a "contents interest" - that is, a particular document the contents of which should not be produced: Duncan v Cammell, Laird & Co Limited [1942] AC 624 per Viscount Simon LC at 636. However, in Commonwealth v Northern Land Council & Anor (1993) 176 CLR 604 at 617, the distinction drawn by this dual categorisation was described as "often rough and imprecise" because it is frequently necessary for the Court, even in a class claim, to inspect a document to determine "whether it does in truth fall into a class which attracts immunity. The contents of the document may have a bearing on that question as may the topic with which it deals…". See also Burmah Oil Co Ltd v governor & Company of the Bank of England [1980] AC 1090 at 1111-1112 per Lord Wilberforce. 128 It is now well established that where a claim for public interest immunity is made the court is required to balance two competing aspects of the public interest: whether the public interest would be harmed by the production of the evidence as against whether the administration of justice would be frustrated or impaired if the evidence was withheld: see Conway v Rimmer; Rogers v Home Secretary [1973] AC 388; Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133 per Lord Denning MR at 140; Sankey v Whitlam at 38-39; Alister v The Queen (1984) 154 CLR 404. In this sense, the immunity is not absolute (except perhaps in civil proceedings in respect of matters subject to current or recent Cabinet discussion: see Commonwealth v Northern Land Council). 129 The court is required to examine the documents itself to resolve the competing aspects of the public interest: Conway v Rimmer; Alister v The Queen. However, before the Court will engage in the balancing exercise it must be satisfied that there is a legitimate forensic purpose in having access to the evidence: Alister v The Queen; R v Saleam (1989) 16 NSWLR 14. There is some difference of views in Alister as to what constitutes a legitimate forensic purpose, although the members of the court were agreed that it was something more than a mere fishing expedition. Without analysing the various viewpoints, it is sufficient for the purposes of this case to accept that there will be a legitimate forensic purpose if access to the documents may assist the case of the appellant, including for the purposes of cross-examining on credit. I have expressed the principle in these broad terms because it was conceded by the respondents, including the Crown, that the appellant had a legitimate forensic purpose in seeking access to the documents. 130 There are a number of recognised categories of class interest, including state secrets, cabinet minutes and evidence which would identify police informers. See discussion in Duncan v Cammell Laird & Co at 634. The overarching public interest which requires as a matter of law that such information be protected has been described as "the maintenance of social peace and order": D v NSPCC per Lord Hailsham at 231; Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667 at 675. However, the rationale underlying each type of public interest immunity claim is differently expressed, depending upon the nature of the claim made. 131 The rationale for the doctrine of public interest immunity for government documents has been described as "the need to safeguard the proper functioning of the executive arm of government and of the public service": Sankey v Whitlam per Stephen J at 56; see also Conway v Rimmer per Lord Reid at 952; Smith v East India Company (1841) 1 Ph 50; Home v Bentinck (1820) 2 Brod&B 130. It would be fair to say however, that the earlier cases which recognised the existence of the doctrine placed much greater weight on the need to protect the internal workings and communications of government departments and officials than would be the case today, given the trend towards the greater accountability and openness of government. This was averted to in Commonwealth v Northern Land Council, where it was said in the joint judgment at 615 that: "[t]he discouragement of candour on the part of public officials has been questioned as a sufficient, or even valid, basis upon which to claim immunity." 132 The rationale underlying the immunity relating to police informers is quite different and, as with other claims for immunity, is directly related to the public interest invoked. The rationale in respect of police informers is that unless the names of informers are protected, sources of information would dry up, thus hindering the police in the detection and prevention of crime: D v NSPCC; Sankey v Whitlam; Cain v Glass (No 2) (1985) 3 NSWLR 230; Attorney General for NSW v Stuart. It is important to recognise that this rationale remains within the overarching public interest, namely "the maintenance of social peace and order": Attorney-General (NSW) v Stuart per Hunt CJ at CL at 675; see D v NSPCC per Lord Hailsham at 231 and Lord Simon at 232. 133 The various circumstances in which the immunity arises demonstrate that there are many facets of the public interest within the broader public interest identified in D v NSPCC and Attorney-General (NSW) v Stuart. Nor is "the public interest" an immutable concept. Rather, it is an evolving concept which will find different expressions and emphases given changing circumstances, evolving philosophies of government and the nation state, and changing technologies. The rationale underpinning the particular public interest will correspondingly evolve. 134 The same is true of rationales which underpin various categories of the allied notion of privilege. This is well recognised in the case of legal professional privilege. When this privilege first emerged during the reign of Elizabeth I, its raison d'etre lay in the "oath and honour" of the attorney. It followed that the privilege was that of an attorney and not the client and was waivable by the attorney. By the early eighteenth century, the underpinning rationale had shifted. The policy foundation of the privilege was to promote the freedom of clients to consult their legal advisers by removal of the "apprehension of compelling disclosure" : 8 Wigmore, Evidence para 2290 (McNaughton rev. 1961). That remains its essential base. As the Earl of Halsbury LC said in Bullivant v Attorney-General (Vic) [1901] AC 196 at 200-201: "for the perfect administration of justice, and for the protection of the confidence which exists between a solicitor and his client, it has been established as a principle of public policy that those confidential communications shall not be subject to production." 135 Mason and Brennan JJ in Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 487 identified the rationale underlying privilege as "the furtherance of the administration of justice through the fostering of trust and candour in the relationship between lawyer and client". See also Attorney-General (NT) v Kearney (1985) 158 CLR 500 at 532 per Dawson J; Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121. 136 Once it is accepted that the rationale underlying a particular class or contents immunity is linked to an evolving public interest, it must follow that the circumstances in which the immunity applies may also change. This is now well accepted. However, the principles which permit or govern the development of the principle call for careful examination. I will turn to the relevant authorities shortly. Before doing so, it is convenient to understand in greater detail two categories of evidence: evidence which would disclose the identity of police informers (a category of evidence which is protected by public interest immunity); and confidential communications (which is not). These two categories are of particular relevance to the matter at issue here; the first because it was by analogy to police informers that immunity was extended in D v NSPCC, an argument which is advanced in favour of a similar extension in this case; and the second because the common law has traditionally refused to recognise confidential communications as a category of evidence which should receive the protection of privilege or immunity, which would militate against such an extension here because a significant reason advanced here for immunity was the confidential nature of the relationship.

[36]

Police Informers 137 The category of police informers has long been recognised as a class to which the protection of public interest immunity will be afforded. The claim can be traced back at least to the Trial of Thomas Hardy for High Treason (1794) 24 State Tr 199. Lord Chief Justice Eyre said at 808: "… but there is a rule which has universally obtained on account of its importance to the public for the detection of crimes, that those persons who are the channel by means of which that detection is made, should not be unnecessarily disclosed: if it can be made appear that really and truly it is necessary to the investigation of the truth of the case that the name of the person should be disclosed, I should be very unwilling to stop it, but it does not appear to me that it is within the ordinary course to do it …" 138 This early statement of the rule established, first, that it is not necessary to prove that the informer is in danger; and secondly, that the immunity is not absolute and would not override the competing public interest of enabling an innocent person to properly establish a defence. 139 These rules were confirmed in Marks v Beyfus (1890) 25 QBD 494 where Lord Esher MR said at 498: "this rule … was founded on grounds of public policy … I do not say it is a rule which can never be departed from; if upon the trial of a prisoner the judge should be of opinion that the disclosure of the name of the informant is necessary or right in order to shew the prisoner's innocence, then one public policy is in conflict with another public policy, and that which says that an innocent man is not to be condemned when his innocence can be proved is the policy that must prevail. But except in that case, this rule of public policy is not a matter of discretion; it is a rule of law …" 140 Lord Diplock in D v NSPCC (at 218) explained the rationale underlying the immunity granted to protect the identity of police informers as follows: "If their identity were liable to be disclosed in a court of law, these sources of information would dry up and the police would be hindered in their duty of preventing and detecting crime. So the pubic interest in preserving the anonymity of police informers had to be weighed against the public interest that information which might assist a judicial tribunal to ascertain facts relevant to an issue upon which it is required to adjudicate should be withheld from that tribunal. By the uniform practice of the judges which by the time of Marks v Beyfus 25 QBD 494 had already hardened into a rule of law, the balance has fallen upon the side of non-disclosure except where upon the trial of a defendant for a criminal offence disclosure of the identity of the informer could help to show that the defendant was innocent of the offence. In that case, and in that case only, the balance falls upon the side of disclosure." 141 Both The Trial of Thomas Hardy and Marks v Beyfus were criminal proceedings. However, the immunity in respect of a police informer's claim is probably an absolute one in civil cases. In Cain v Glass, McHugh JA said at 248: "[u]ntil the High Court decides to the contrary, however, I think that the courts in this State should continue to apply the rule that no question of weighing competing public interests arises when a claim is made that the name of a police informer should be disclosed. The rule is absolute and is relaxed only 'where upon the trial of a defendant for a criminal offence disclosure of the identity of the informer could help to show that the defendant was innocent of the offence'. I have stated the exception in the language of Lord Diplock in D v National Society for the Prevention of Cruelty to Children (at 218)." 142 The public interest in maintaining social peace and order has been said to require protection of any information about continuing inquiries which, if disclosed, would be useful to those who organise criminal activities, may impede police in the pursuit of criminal activity or may prejudice future police activities: see Attorney-General (NSW) v Stuart per Hunt CJ at CL at 675 and the cases there cited. Although the need to protect the safety of informers may have played a part in the creation of the principle, the existence of a threat to the informer is not a condition precedent to its operation: D v NSPCC at 232 per Lord Simon of Glaisdale.

[37]

Confidential Communications 143 Confidentiality as such has not been recognised as attracting either immunity or privilege. However, in D v NSPCC Lord Hailsham at 230 stated that there were cases where confidentiality was itself a public interest. He gave as an example the case where a body was charged with the function of the enforcement and administration of the law by the initiation of court proceedings. It has also been recognised that the confidential nature of communications may be relevant to the balancing exercise which the court is required to undertake in a public interest immunity claim: Science Research Council v Nasse [1980] AC 1028. 144 In McGuinness v Attorney-General (Vic) (1940) 63 CLR 73 a newspaper editor, who had published articles alleging that unspecified members of Parliament had accepted bribes, refused to answer questions put by the Royal Commissioner appointed to inquire into such allegations as to the source of information upon which his information was based. On the appeal to the High Court, the editor sought to justify his refusal to answer on three bases, one of which was that an editor or journalist could never be required to disclose the source of information used to base a newspaper article. In the course of rejecting that claim Dixon J stated at 102-103: "the law was faced at a comparatively early stage of the growth of the rules of evidence with the question how to resolve the inevitable conflict between the necessity of discovering the truth in the interests of justice on the one hand and on the other the obligation of secrecy or confidence which an individual called upon to testify may in good faith have undertaken to a party or other person. Except in few relations where paramount considerations of general policy appeared to require that there should be a special privilege, such as between husband and wife, attorney and client, communications between jurors, the counsels of the Crown and State secrets, and, by statute, physician and patient and priest and penitent, an inflexible rule was established that no obligation of honour, no duties of non-disclosure arising from the nature of a pursuit or calling, could stand in the way of the imperative necessity of revealing the truth in the witness box. Claims have been made from time to time for the protection of confidences to trustees, agents, bankers, and clerks, amongst others, and they have all been rejected." 145 Dixon J also referred to the trial of the Duchess of Kingston where the Duchess' surgeon's claim to privilege in respect of certain of her confidences was rejected. See also Smith v East India Co; Rogers v Home Secretary. 146 The question of confidentiality and public interest immunity was extensively discussed in D v NSPCC. Lord Diplock said at 218: "… The private promise of confidentiality must yield to the general public interest that in the administration of justice truth will out, unless by reason of the character of the information or the relationship of the recipient of the information to the informant a more important public interest is served by protecting the information or the identity of the informant from disclosure in a court of law." 147 This passage was quoted with approval by Wood J in Finch v Grieve (1991) 22 NSWLR 5578 at 591: see below. 148 Lord Simon said at 230: "… I do not myself think that confidentiality in itself establishes any public interest in the exclusion of relevant evidence, but rather that it may indirectly be significant where a public interest extrinsically established (for example, provision of professional legal advice or effective policing) can only be vindicated if its communications have immunity from forensic investigation." 149 See also Lord Hailsham at 239.

[38]

Extension of Immunity 150 I have earlier referred to the undisputed principle that the categories of case in which immunity may be granted is not closed. It will be apparent from the above discussion that the principle will in fact operate in both directions, that is to narrow the cases in which the immunity is recognised (although in the case of the narrowing aspect, the balancing exercise also plays a role) and to broaden it. It is the principles upon which and the circumstances in which the immunity will be extended that are at issue here. The two most relevant authorities are the well known cases of Rogers v Home Secretary and D v NSPCC. 151 In Rogers v Home Secretary an applicant for a gaming licence sought but was refused access to a letter which had been written to the Gaming Board attacking his character. The appellant had obtained a copy of this letter, presumably through improper means. He sought to prosecute the author of the letter for criminal libel and applied for witness summonses against representatives of the Board and the Chief Constable seeking production of the letter. The Attorney-General claimed public interest immunity. The House of Lords unanimously upheld the claim. Lord Reid at 400 identified as the issue before the court: "… whether the public interest requires that the letter shall not be produced and whether that public interest is so strong as to override the ordinary right and interest of a litigant that he shall be able to lay before a court of justice all relevant evidence." 152 Categorising the claim as a class claim, his Lordship continued at 400: "[t]he claim in the present case is not based on the nature of the contents of this particular letter. It is based on the fact that the board cannot adequately perform their statutory duty unless they can preserve the confidentiality of all communications to them regarding the character, reputation or antecedents of applicants for their consent." 153 Notwithstanding the categorisation of the claim as a class claim, he continued to recognise, as he had in Conway v Rimmer that even class claims are subject to a balancing exercise. Lord Reid had said in that case at 952: "There may be special reasons for withholding some kinds of routine documents, but I think that the proper test to be applied is to ask, in the language of Lord Simon in Duncan's case, whether the withholding of a document because it belongs to a particular class is really 'necessary for the proper functioning of the public service.'" 154 In Rogers v Home Secretary, Lord Reid added (at 401): "I do not think that 'the public service' should be construed narrowly. Here the question is whether the withholding of this class of documents is really necessary to enable the board adequately to perform its statutory duties. If it is, then we are enabling the will of Parliament to be carried out." 155 In extending the relevant type of class claim beyond that of police informer to informants who provided information to a body such as the Gaming Board, his Lordship stated at 401: "It has long been recognised that the identity of police informers must in the public interest be kept secret and the same considerations must apply to those who volunteer information to the board. Indeed, it is in evidence that many refuse to speak unless assured of absolute secrecy. 156 … It is possible that some documents coming from the board could be disclosed without fear of such consequences [that is, identifying the informant to the person informed upon]. But I would think it quite impracticable for the board or the court to be sure of this. So it appears to me that, if there is not to be very serious danger of the board being deprived of information essential for the proper performance of their difficult task, there must be a general rule that they are not bound to produce any document which gives information to them about an applicant." 157 Lord Salmon recognised that the classes of case to which the immunity attaches are not fixed. However, at 412 he cautioned against an unconstrained extension of the immunity: "This immunity should not lightly be extended to any other class of document or information, but its boundaries are not to be regarded as immutably fixed. The principle is that whenever it is clearly contrary to the public interest for a document or information to be disclosed, then it is in law immune from disclosure. If a new class comes into existence to which this principle applies then that class enjoys the same immunity." 158 The question of extending the categories of case in which immunity could be granted arose again in D v NSPCC. The NSPCC was a voluntary society founded in 1889 and incorporated by royal charter. Its charter functions included the prevention of public and private wrongs against children and the taking of action for the enforcement of laws for their protection. The uncontradicted evidence of the Director of the NSPCC was that the work of the society was dependent upon its receiving prompt information of suspected child abuse. The evidence of the Director was that without an effective promise of confidentiality neighbours and others would be hesitant to pass on to the society information about suspected child abuse. 159 The House of Lords upheld the claim for immunity on the basis that the public interest which was invoked to protect disclosure of the sources of the Society's information was analogous to the public interest which underlay the protection of evidence as to the identity of police informers. 160 The House was fortified in recognising the claim because of its decision five years earlier in Rogers v Home Secretary. As Lord Diplock said at 218: "Your Lordships' sense of values might well be open to reproach if this House were to treat the confidentiality of information given to those who are authorised by statute to institute proceedings for the protection of neglected or ill-treated children as entitled to less favourable treatment in a court of law than information given to the Gaming Board so that gaming may be kept clean." 161 The extension of the immunity by analogy to the police informer category was underpinned by other factors. First, there were three separate authorities which could bring care proceedings in respect of neglected or ill-treated children - the police, local authorities and the NSPCC. If the police brought proceedings, the House considered that the identity of their sources of information would be protected under the established immunity for police informants. Lord Diplock considered therefore that: "[t]o draw a distinction in this respect between information given to the police and that passed directly to a local authority or to the NSPCC would seem much too irrational a consequence to have been within the contemplation of Parliament when enacting the Children and Young Persons Act 1969." 162 Lord Hailsham at 229 also referred to the manifest absurdity of protecting the identity of informers depending upon who was the prosecuting authority, holding that the public interest in respect of each was identical. Lord Hailsham also considered, at 218, that it was of significance that the courts had long been concerned with the welfare of children, as exemplified by the role of the Crown as parens patriae and the long history in the United Kingdom of legislation directed to protecting the welfare of children. 163 Lord Hailsham concluded at 230: "[t]he categories of public interest are not closed, and must alter from time to time whether by restriction or extension as social conditions and social legislation develop." 164 Unlike what had been said in Rogers v Home Secretary, Lord Diplock did not see that there was any basis in principle or policy for confining public interest as a ground for non-disclosure of documents or information to the effective functioning of departments or organs of central government, even in the extended sense given to the 'public service' in that case. He noted that in Conway v Rimmer the public interest protected was the effective functioning of a county police force; that in In Re D (Infants) [1970] 1 WLR 599 the interest protected was the effective functioning of a local authority in relation to the welfare of boarding house children. See also Lord Edmund-Davies in D v NSPCC at 245. The public interest to be protected in D v NSPCC itself was the effective functioning of an organisation authorised under an Act of Parliament to bring legal proceedings for the welfare of children. 165 Lord Simon, at 232, traced through the various immunities and privileges which excluded relevant evidence from disclosure, stating, at 233, that there was "a continuum of relevant evidence which may be excluded from forensic scrutiny". He had earlier noted at 232 that the administration of justice is "one facet only of a wider public interest - namely, the maintenance of the Queen's peace": see also Attorney-General (NSW) v Stuart per Hunt CJ at CL at 675. 166 The basis upon which their Lordships recognised a new class of documents as being protected by public interest immunity was by analogy with an existing class. A broader approach to the extension of the immunity had been urged on the House, namely that once a public interest was identified, the court must consider that interest again the administration of justice, as countervailing public interest and determine in the circumstances of the particular case whether to grant or refuse disclosure. The House clearly rejected the broad approach: Lord Diplock at 219-220; Lord Hailsham at 224-225; Lord Simon at 235. 167 The position in England since D v NSPCC has varied. The claim for immunity in Science Research Council v Nasse was rejected because, although the documents sought to be protected were confidential, no particular aspect of the public interest was established. Later English cases have taken an expansive view of public interest immunity but the decisions seem at least partly to have depended on the discretionary power contained in the Supreme Court Rules. 168 In R v K (1993) 97 Cr App R 342 (UK) it was accepted without argument that public interest immunity attached to a video tape of an interview at a hospital for therapeutic purposes of two boys who had allegedly been sexually assaulted by their father. The issue in the appeal was whether the trial judge should himself have viewed the video tape, before ruling that it should not be disclosed. 169 The issue has also arisen in Australia. Relationships Australia v Pasternak (1996) 133 FLR 462 was a case where the relevant legislation provided that evidence of anything said at a conference with a marriage counsellor was not admissible in any court authorised to hear evidence. The Full Court of the Family Court held that such information was immune, not only from admission into evidence, but also from pre-trial production and inspection. The Court said at 470: "we think it is tolerably clear that the intention of the legislature as expressed in the Act is that what is said at a conference with a marriage counsellor is, subject to appropriate statutory exceptions, not only immune from admission in evidence in proceedings but also from court processes available to compel the disclosure of information to parties in proceedings." 170 At 472-473 the Court dealt with an alternative submission that the documents subpoenaed were immune from inspection by reason of public interest immunity. The Court concluded: "In our view, it is appropriate, given the confidentiality of the environment in which the documents the subject of this appeal were produced, that a claim for class 'privilege' be made." 171 A claim for public interest immunity in a different context was upheld by Wood J in Finch v Grieve where the New South Wales Bar Council was held to be entitled to claim public interest immunity in respect of documents received by the Bar Council giving rise to an allegation of misconduct against a barrister. The claim was considered by his Honour against the background of the statutory regime which regulates the conduct of barristers. Wood J noted that protection was required because there was a: "substantial public interest in the Bar Council receiving complaints about misconduct of barristers, in being able to speak freely with such complaints, in being able to fully investigate those complaints and in appropriate cases being able to gather additional evidence. This is part and parcel of a public interest that it effectively carry out the statutory functions assigned to it, and that the legislation as a whole be implemented. The public interest is obvious and hardly needs stating. The public are to be protected from barristers who are guilty of professional misconduct, or unsatisfactory professional conduct, and are entitled to have effective orders made not only for the disciplining of those barristers who offend, but to have their losses made good. These are the ends the Act serves, and it provides an effective means for discipline and compensation." 172 In B v N (1994) 35 NSWLR 140 it was common ground that documents which the Protective Commissioner was subpoenaed to produce in an action for damages for personal injury brought by the Commissioner on behalf of a protected person attracted public interest immunity, although Hodgson J, after conducting the balancing process, ruled that the documents should be produced. 173 Public interest immunity in the present or related field has been recognised at District Court level in Howe v State of South Australia (1998) 196 LSJS 182 and R v Bull (1997) 17 SR(WA) 364. 174 In New Zealand, a claim for immunity was rejected in M v L [1997] 3 NZLR 424. The plaintiffs had brought an action for damages for sexual abuse against a school teacher and persons associated with the school. The plaintiffs had included in their discovery a reference to notes made by doctors and counsellors they had consulted, but had claimed privilege from production of those notes. The question arose whether the defendants should be granted an order for inspection of the notes. The New Zealand High Court decided that a common law class privilege for counselling notes should not be recognised or created, but held the matter was properly deal with under the discretionary power contained in the rules of court. 175 In Jaffee v Redmond (1996) 518 US 1, the Supreme Court of the United States recognised the existence of privilege in respect of communications between a psychotherapist and patient in the course of diagnosis or treatment, and then extended the privilege to the communications between a patient and a social worker in the course of psychotherapy with the patient. 176 Jaffe v Redmond was not a case of sexual assault, but a damages claim against a a police officer brought by the family of a man shot by the police officer in the course of duty. After the shooting, the police officer had received counselling from a clinical social worker. The family sought access to the counselling records. 177 The US Supreme Court, by majority, upheld the Court of Appeals ruling that the records were privileged. In doing so, it referred to r 501 of the Federal Rules of Evidence, which authorised Federal Courts to define new evidentiary privileges by interpreting "common law principles … in the light of reason and experience". The majority found it compelling that all fifty states "have enacted into law some form of psychotherapist privilege" (at 12) and considered that "policy determinations by state legislatures" could be treated as reflecting both "reason" and "experience" within the meaning of r 501 (at 13). Rule 501 was based upon the observation made by the Supreme Court in its earlier decision Wolfle v United States 291 US 7 at 12 that "the common law is not immutable but flexible, and by its own principles, adapts itself to varying conditions" and the further observation in Hawkins v United States 358 US 74 that changes in privileges may be "dictated by 'reason and experience'". 178 The majority held at 10 that "like the spousal and attorney-client privileges, the psychotherapist-patient privilege is rooted in the imperative need for confidence and trust". Their Honours noted (at 10) that the 1972 Judicial Conference Advisory Committee, in recommending the acceptance of a psychotherapist privilege, observed that a psychiatrist's ability to help a patient: "is completely dependent upon [the patient's] willingness and ability to talk freely. This makes it difficult if not impossible for [a psychiatrist] to function without being able to assure … patients of confidentiality and, indeed, privileged communication. Where there may be exceptions to this general rule …, there is wide agreement that confidentiality is a sine qua non for successful psychiatric treatment." 179 This and other material before them demonstrated there was an "important private interest" to be served by recognition of the privilege. They identified the "public end" necessary to found the privilege as: "… facilitating the provision of appropriate treatment for individuals suffering the effects of a mental or emotional problem. The mental health of our citizenry, no less than its physical health, is a public good of transcendent importance." 180 Justice Stevens, writing for the majority, contrasted this with the evidentiary benefit which would result from non-recognition of the privilege, which he considered to be modest. 181 Stevens J concluded at 15: "Because we agree with the judgment of the state legislatures and the Advisory Committee that a psychotherapist-patient privilege will serve a 'public good transcending the normally predominant principle of utilising all rational means for ascertaining truth' … we hold that confidential communications between a licensed psychotherapist and her patients in the course of diagnosis or treatment are protected from compelled disclosure under r 501 of the Federal Rules of Evidence." 182 The majority held that the privilege was an absolute one. 183 In attaching significance to the legislative activity in the various states, the majority observed that the Supreme Court had long held that it could have regard to the policy decisions of the States (given effect by legislation) in determining whether to recognise a new privilege or amend the coverage of an existing one. Another significant factor in their recognition of the privilege was the disparity which would be caused if a privilege, recognised in state courts and by state statutes, was not honoured in a federal court. Stevens J observed, at 13, that: "[d]enial of the federal privilege therefore would frustrate the purposes of the state legislation that was enacted to foster these confidential communications." 184 Stevens J considered that it was of no consequence that at state level, recognition of the privilege was the product of legislation, rather than judicial development, commenting that "the present unanimous acceptance [by state legislatures] shows that the state law makers moved quickly" and demonstrated "only that the States rapidly recognised the wisdom of the rule as the field of psychotherapy developed". 185 In extending the privilege to "licensed social workers in the course of psychotherapy", Stevens J stated at 15-16: "[t]oday, social workers provide a significant amount of mental health treatment. … Their clients often include the poor and those of modest means who could not afford the assistance of a psychiatrist or psychologist … but whose counselling sessions serve the same public goals." 186 It is fair to say that Justice Scalia's dissent (joined in by Chief Justice Rehnquist) was scathing, not the least aspects of which was his criticisms of was the "easy slide" made by the majority from the recognition of the psychotherapist privilege to recognising privilege for the communications of "licensed social workers in the course of psychotherapy"; the disconformity between the various state laws; and the notion that the evidentiary role of the material covered by the privilege would be slight. Justice Scalia's viewpoint may best be summed up in his conclusion (at 35) that: "...given our extensive precedent to the effect that new privileges 'in derogation of the search for truth' 'are not lightly created', United States v Nixon 418 US at 710 the answer the Court gives today is inexplicable." 187 In Canada, privilege has been recognised for counselling records in M v Ryan (1997) 143 DLR (4th) 1. In that case the Canadian Supreme Court held that records made by a psychiatrist were privileged. At 8 McLachlin J, who delivered the leading judgment, said: "while the circumstances giving rise to a privilege were once thought to be fixed by categories defined in previous centuries - categories that do not include communications between a psychiatrist and her patient - it is now accepted that the common law permits privileges in new situations where reason, experience and application of the principles that underlie the traditional privileges so dictate [citations omitted]) ... The applicable principles are derived from those set forth in Wigmore on Evidence [citation omitted] para 2285. First, the communication must originate in a confidence. Second, the confidence must be essential to the relationship in which the communications arises. Third, the relationship must be one which should be 'sedulously fostered' in the public good. Finally, if all these requirements are met, the court must consider whether the interests served by protecting the communications from disclosure outweigh the interest in getting at the truth and disposing correctly of the litigation." 188 McLachlin J found that all of these conditions were satisfied. She declined, at 13, to follow "the all-or-nothing approach adopted by the majority of the Supreme Court of the United States of endorsing an absolute privilege for all psychotherapist records in Jaffee v Redmond" and held that the court was required to engage in a balancing exercise to determine whether the particular documents should be disclosed. 189 Two remarks should be made about the Canadian decision. In the first place, the Court described the claim made as one of privilege, not immunity (as did the Court in Jaffee). The question of public interest immunity was not discussed, although it is not entirely clear which concept was under consideration. This is important as privilege may be waived and secondary evidence may be given of privileged material. Secondly, there was considerable emphasis placed upon the right to privacy entrenched in the Canadian Charter of Rights and Freedoms. New South Wales does not have a Charter or a Bill of Rights. I do not consider, however, that the existence of an entrenched Charter right makes a difference as to whether counselling records of sexual assault victims are protected by public interest immunity, as the confidential nature of the relationship between counsellor and patient is well recognised.

[52]

These are undesirable outcomes. Where a victim refuses to initiate court proceedings or undergo counselling, or to the extent to which the openness of the counselling relationship is constrained, both the interests of the victim and the interests of the community in general are harmed" (emphasis added). 196 Cossins and Pilkington in 'Balancing the Scales: the case for the inadmissibility of counselling records in sexual assault trials', UNSWLJ 19(2):222 support these arguments. At 225-226 they refer to the case studies reported by the Working Party Concerning Confidentiality of Counsellors' Notes, in Recommendations for the Protection of Counsellors' Notes in Sexual Assault Court Matters, a submission to the New South Wales and Commonwealth Attorneys-General, March 1996 at 5 and conclude at 226: "… a victim of sexual assault is faced with the dilemma between seeking counselling support in order to deal with the effects of being sexually assaulted, or reporting the sexual assault to the police." 197 Cossins and Pilkington comment that anecdotal evidence obtained by the Working Party revealed that a sexual assault victim might withdraw a complaint if counselling files were subpoenaed. 198 The Sydney Rape Crisis Centre has reported: "We consider the knowledge that counsellors' notes can be subpoenaed to be a major barrier for women who have been raped to laying a complaint with police, going ahead with the hearing, contacting sexual assault services and even continuing contact with this Centre … We estimate that this issue has influenced the decision of at least 25 per cent of the women who have contacted SRCC over the past 5 years … [out of about] 2700 new contacts per year… These women decided not to report to the police, not to proceed with court cases and in some instances to discontinue contact with sexual assault services… SRCC is the only rape crisis/sexual assault service in NSW where women who contact can remain completely anonymous … Women who contact frequently mention that they would not contact another sexual assault service because of a perceived and/or actual lack of complete confidentiality of files." 199 Official figures reveal that in 1998 14,568 reports of sexual assault were recorded by police in Australia: Australian Bureau of Statistics, Recorded Crime, published 16 June 1999. The Sydney Rape Crisis Centre suggests that the incidence of sexual assault may be significantly higher, and American research indicates that an even higher percentage of complainants may refuse counselling if anonymity is not preserved: see Cossins and Pilkington at 230. 200 There is also judicial support for the view that the availability of counselling reports may inhibit the reporting of sexual assault. In R v Osolin (1994) 109 DLR (4th) 478, L'Heureux Dube J observed at 500 that: "[o]ne of the most powerful disincentives to reporting sexual assaults is women's fear of further victimisation at the hands of the criminal justice system." 201 In addition to the legislative recognition of the need to protect these documents from being adduced in evidence, other significant public recognition has been given to the seriousness of the crime of sexual assault and the need to assist and protect the victims of sexual assault in various ways. In 1995 the New South Wales Health Department, the New South Wales Police Service and the Office of the Director of Public Prosecutions, as the three government agencies primarily responsible for responding to victims of sexual assault, issued Interagency Guidelines for Responding to Adult Victims of Sexual Assault. The introduction to the Guidelines states (at 8-9): "Sexual assault is a crime of violence. It is also a humiliating, degrading and often terrifying experience which can have long term effects on its victims.

[56]

Sexual assault is an area of considerable legal and social complexity. Those working with the victims of this crime need to develop a clear understanding of one another's differing skills and areas of responsibility and cultivate more effective ways of working together in the interests of victims …" (emphasis added). 202 The Guidelines recognise (at 16) that "… sexual assault is a crime of power and control …" and (at 19) that "[c]onfidentiality is a victim's right". Cossins and Pilkington note, at 225, that the breach of privacy and confidentiality which is inevitable if counselling records are made available can lead complainants to feel "re-victimised by procedures… reinforcing their experience of powerlessness and invasion from the original assault". 203 Victims of sexual assault are eligible for statutory compensation under the Victims Compensation Act (NSW) 1996: see ss 6, 10, and Sch 1 cl 6. Under the Act victims of the most serious sexual assaults are entitled to compensation between $25,000 and $50,000. A person eligible for statutory compensation may apply for payment for approved counselling services: s 21. (Section 21 has been subsequently amended to remove the requirement that a person be eligible for statutory compensation prior to receiving counselling.) The section provides for an initial two hours of counselling and up to a further 20 hours as approved by a compensation assessor. Payment for counselling sessions beyond 20 hours may be approved by the Director. 204 The combination of these matters are, in my opinion, official recognition that there is an "interest", which by the manner in which it has been recognised, is a "public interest", in assisting victims of sexual assaults to deal with the impact of psychological trauma to which they have been subjected. The provision of compensation recognises that such trauma is productive of the type of injury which calls for compensation. 205 The question at issue here, however, is whether the "public interest" also requires that counselling communications be immune from disclosure. In asserting a positive answer to this question, the respondents also relied on the "gravitational pull" of statute law: see Akins v Abigroup Ltd (1998) 43 NSWLR 539 at 547-548. This notion was, as I have already described, influential in the majority decision in Jaffee v Redmond. 206 In support of this submission, reference was made to the fact that there are now three Australian states, New South Wales, Victoria and South Australia, which have or are about to have statutory provisions protecting the confidentiality of communications of victims of sexual assault and their counsellors. The New South Wales provisions are discussed in the judgment of James J. The protection which those provisions give is, on his view, limited to the trial stage. I agree with that view. 207 Section 1 of the Evidence (Confidential Communications) Act 1998 (Vic) provides that the purpose of the Act is: "… to amend the Evidence Act 1958 so as to protect from disclosure in legal proceedings confidential communications between the victim or alleged victim of a sexual offence and a medical practitioner or counsellor. The Act enables a court to order disclosure but specifies matters about which the court must be satisfied before doing so." 208 The Act inserts a new Division 2A into Part II of the Evidence Act 1958, dealing with confidential communications, which are defined to mean communications made in confidence by a person against whom a sexual assault has been, or has alleged to have been, committed and a medical practitioner or counsellor. 209 New s 32C provides that evidence is not to be adduced in a legal proceeding if it would disclose a confidential communication or the contents of a document recording a confidential communication unless the court grants leave to do so. Section 32D specifies the restrictions under which the court may grant leave to adduce protected evidence. They are similar to the provisions under s 26H(3) of the New South Wales Act. 210 In South Australia the Evidence (Confidential Communications) Amendment Bill 1998 has been introduced into Parliament. It, too, will amend that State's Evidence Act and proposes a new Div 9 in Par VII of that Act. The proposed s 67C protects, under public interest immunity, a communication relating to a victim or alleged victim of a sexual offence made in a therapeutic context from disclosure in legal proceedings. In accordance with the common law principles governing public interest immunity, the statutory immunity cannot be waived. It is subject to a statutory balancing exercise and, importantly for present purposes, is not liable to discovery or any other form of pre-trial disclosure. 211 There is a significant difficulty in the respondent's reliance on this statutory development as the High Court has said that there is one common law for Australia: Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, where the Court referred (at 563) to the (non-curial) statement of Sir Owen Dixon that: "[w]e act every day on the unexpressed assumption that the one common law surrounds us and applies where it has not been superseded by statute." 212 Dixon, 'The Common Law as an Ultimate Constitutional Foundation', 31 ALJ 240 at 241, reprinted in Jesting Pilate (1965) 203 at 205. 213 The difficulty in this case with relying on the legislative magnet is that the provisions of the New South Wales and Victorian Acts and the South Australian Bill are not identical. Presumably, they reflect the differing priorities which the respective legislatures accorded to various aspects of the issue. How does the Court of one state, in the initial stages of recognition of the development of the common law and the consequent statement of principle, deal with differing statutory schemes? What is the single true common law principle which emerges in such a circumstance? The difficulties which are reflected in the question seem to provide the answer. It is difficult in such circumstances to say that a single common law principle emerges from the differing statutory schemes, notwithstanding that each deals with the same topic. I would therefore reject statutory reform in these circumstances as a basis for finding the existence of a public interest which attracts the principle of evidentiary immunity.

[57]

Conclusion 214 In this case, several aspects of the public interest were identified as being sufficient to attract the doctrine of public interest immunity - protecting victims and promoting victims' recovery from sexual assault; facilitating the effective operation of sexual assault services; and encouraging complainants to report the crime of sexual assault to police. This last aspect of the public interest is, in my opinion, the linchpin in the respondent's claim for immunity. In particular, it satisfies the requirement that new categories of public interest immunity develop by analogy with existing categories: in this case, that of police informers. 215 The material to which I have referred is of sufficient force and authority to satisfy me that the risk of disclosure of confidential counselling communications of sexual assault victims is, or can be, a significant deterrent to the reporting of sexual assaults, a serious and prevalent crime in our community. The other aspects of the public interest which were identified in the evidence, while not sufficient of themselves to attract the doctrine, support the application of the principle to the class of documents which is subject of the claim here. It was clearly recognised in both Rogers v Home Secretary and D v NSPCC that the need to protect confidentiality was relevant to the question whether the documents should be protected from disclosure. In the present case, I am of the opinion that the claim attracts the principles of public interest immunity and, subject to the balancing exercise which the court is required to carry out when such a claim is made, are protected from disclosure. I can see no policy reason why the immunity should not be extended to the class of documents subject of the present claim. 216 Accordingly, I would dismiss the appeal. 217 ABADEE and BARR JJ: We generally agree with the draft judgments of the Chief Justice and James J. Subject to following additional observations, we also adopt the reasons and conclusions of James J and the reasons of the Chief Justice. 218 In our view the Court should be slow to expand the categories of public interest immunity, particularly in the area of criminal law. There are dangers in doing so in cases involving the public interest in the proper administration of criminal justice. 219 In Alister v The Queen (1983-1984) 154 CLR 404 at 431 Murphy J, speaking on the subject of the public interest in certain official information remaining secret, said at 431 - [But] there is also the public interest in the proper administration of criminal justice. The processes of criminal justice should not be distorted to prevent an accused from defending himself (herself) properly. 220 The establishment of a public interest immunity of the kind contended for might distort the processes of criminal justice in the manner contemplated by his Honour and it seems to us that it is for the Parliament, not the Court, to determine whether such a significant change in the rights of accused persons is warranted. 221 In the instant case the reasons for rejecting the derivative application apply equally to the rejection of the creation of a public interest immunity of the kind advocated. The extension of the categories of public interest immunity in this case would not be by analogy with any existing category of privilege. The circumstances are quite unlike those in D v National Society for the Prevention of Cruelty to Children [1978] AC 171, where the House of Lords applied the protection of the identity of informers rule by analogy to a claim for the protection of an informer to a society which could institute prosecution for cruelty to children. The analogy present in that case is not present here. 222 In Cain v Glass (No 2) (1985) 3 NSWLR 230 at 246-247 McHugh JA ,as his Honour then was, explained the rule relating to the protection of the identity of informers as the result of the immunity from disclosure granted to communications made in the public interest and as a particular manifestation of the doctrine of public interest immunity. Having cited D v National Society for the Prevention of Cruelty to Children, his Honour continued at 250 - The method of the common law is to apply established principles to analogous cases. That is the source of its genius and capacity for growth. 223 In Sutherland Shire Council v Heyman (1984-1985) 157CLR 424 Brennan J, as his Honour then was, considered that novel categories of negligence should be developed incrementally and by analogy with established categories. In Breen v Williams (1995-1996) 186 CLR 71 Gaudron and McHugh JJ said at 115 - Advances in the common law must begin from a baseline of accepted principle and proceed by conventional methods of legal reasoning. Judges have no authority to invent legal doctrine that distorts or does not extend or modify accepted legal rules and principles. Any changes in legal doctrine, brought about by judicial creativity, must "fit" within the body of accepted rules and principles. The judges of Australia cannot, so to speak, "make it up" as they go along. It is a serious constitutional mistake to think that the common law courts have authority to "provide a solvent" (165) for every social, political or economic problem. The role of the common law courts is a far more modest one. In a democratic society, changes in the law that cannot logically or analogically be related to existing common law rules and principles are the province of the legislature. From time to time it is necessary for the common law courts to re-formulate existing legal rules and principles to take account of changing social conditions. Less frequently, the courts may even reject the continuing operation of an established rule or principle. But such steps can be taken only when it can be seen that the "new" rule or principle that has been created has been derived logically or analogically from other legal principles, rules and institutions. 224 There are here no established categories such as were considered necessary by Brennan J in Sutherland Shire Council v Heyman or accepted existing rules or principles considered necessary by Gaudron and McHugh JJ in Breen v Williams. 225 In our view, to establish the public interest immunity privilege contended for would be effectively to perform a legislative function and achieve what Parliament has not on the true construction of the legislation achieved: Newcastle CC v GIO General Limited (1997) 72 ALJR 97 per McHugh J at 110. 226 In Breen v Williams (1994) 35 NSWLR 522 Mahoney JA said at 557 - … [It] is not the function of the courts to change the law by processes which are legislative rather than judicial … the function of the courts is to apply the law, not to legislate for change of it. 227 His Honour also observed at 558 that where what is in question is a competition between competing social claims which involve the making of a general social judgment, and where it is claimed that changes should be made to the rights of parties to give effect to that social judgment, it is for the legislature, which is accountable to the community and to those members of it whose rights will be affected, to make such changes. To like effect is the judgment of Mason J, as his Honour then was, in SGIC v Trigwell & Ors (1978) 142 CLR 617 at 633-634. 228 In our view, the instant case may alternatively be seen as involving competing social claims, the resolution of which ought to be left to the legislature. 229 By enacting the Evidence Amendment (Confidential Communications) Act, the legislature has addressed a public interest concern by creating a new class of statutory immunity, whose nature and extent have been precisely identified. It is difficult in the circumstances to see why the common law should be changed to create, in effect, a new privilege outside the precise boundaries drawn by the legislature. It seems to us that there are good reasons why no such change should be introduced by the Court, at least where the rights of an accused person would be affected. There is a fundamental distinction between the right to adduce evidence at a trial and the right to make proper pre-trial investigation. 230 Moreover, if the common law were to be so extended it is quite unclear where the boundaries of the new immunity should be drawn. Understandably, the terms of the statute give no assistance. Should its terms, then, be modified to accommodate pre-trial procedures? If so, what should be the scope and content of the modification? Should some other way be devised of limiting the new rule? Merely to ask these questions shows that the Court is being asked to legislate. 231 We agree with the orders proposed by James J. 232 JAMES J: This is an appeal by Brian James Young pursuant to s5F of the Criminal Appeal Act against an interlocutory order made in the District Court by his Honour Judge Freeman on 1 September 1998, which was expressed as being an order declining to allow the appellant access to documents which had been produced in response to four subpoenas issued on behalf of the appellant, which were directed to the Tamworth Base Hospital, a member of the Sexual Assault Service attached to the Tamworth Base Hospital, a member of the Community Mental Health Team attached to the Tamworth Base Hospital and a psychiatrist practising in Tamworth. The principal respondent to the appeal is an entity known as the New England Area Health Service, which provides various health services to the public in the New England area, including those provided by the Tamworth Base Hospital and which was treated as representing all of the persons who had been subpoenaed. The Crown was also represented on the hearing of the appeal, the Crown Prosecutor informing the court that the attitude of the Crown was "neutral". The court granted leave to the Attorney General of New South Wales to intervene and counsel for the Attorney General made submissions generally in support of the submissions made by the Health Service. It was accepted by all parties on the hearing of the appeal that the order made by Judge Freeman was an interlocutory order within the meaning of that term in s5F and that therefore the appeal was competent. Judge Freeman granted a certificate under s5F(3)(b) of the Criminal Appeal Act, so that there is no need for this Court to grant leave to appeal under s5F(3)(a). 233 It is necessary to refer to some of the background facts. 234 On 8 October 1996 the appellant had been charged with one count of sexual assault and one count of indecent assault, both allegedly committed on the previous day against the same complainant, a teenage girl, who I will refer to simply as "the complainant". The complainant had on 8 October 1996 made a statement to the police in which, as well as giving an account of the alleged offences, she said that she had disclosed to the appellant that she was suffering from depression, that she had previously been admitted to the psychiatric ward of the Tamworth Base Hospital and that she had previously been sexually abused. 235 On 20 December 1996 the complainant made a further statement to the police, which included the following paragraph:- "I hereby give permission for the New South Wales Police Service to approach my consulting psychologist Dr de Groot and obtain from that doctor any relevant mental health information that is required to assist the Crown in the preparation of the case against Mr Brian J Young". 236 Dr de Groot is in fact a psychiatrist practicing in partnership at Tamworth. On 7 January 1997 Dr de Groot wrote a letter to the police. In this letter Dr de Groot stated that the complainant had been seen professionally by himself or one of his partners on a number of occasions, commencing in August 1996. The complainant had been diagnosed as suffering from a personality disorder, with problems adjusting to events which occurred within her home environment. Dr de Groot's letter concluded with the following passage:- "During one of her admissions she claimed to have been subjected to two rape incidents and have become distressed by the fact that she had been taking hard drugs and had had a friend who had died recently. Later on she withdrew one of the claims of rape and also the claims of drug use and friend's death". 237 On either 20 or 29 May 1998 the Crown, pursuant to its obligation to exercise fairness towards an accused person in criminal proceedings, served a copy of Dr de Groot's letter on the appellant. 238 The appellant's legal advisers issued subpoenas for production, addressed respectively to the Medical Records Clerk of the Tamworth Base Hospital, Susan Hayman of the Sexual Assault Service attached to the Tamworth Base Hospital and Denise Pierce of the Community Health Team attached to the Tamworth Base Hospital. All of the three subpoenas required production of "all patient's notes, records, files and like documents relating to (the complainant)". A fourth subpoena was issued to Dr de Groot, no copy of which was before this Court but which the Court was informed was in similar terms. 239 The trial of the appellant on the two charges was listed to commence in the District Court at Tamworth on 31 August 1998. On 28 August 1998 Dr McGregor of the New South Wales Department of Health made an affidavit. In his affidavit Dr McGregor said in paragraph 1:- "I am the Deputy Director-General, Operations, of the Department of Health ("the Department"). The Department is charged with the responsibility of administering area and rural health services providing a wide range of services to the public. The New England Area Health Service is one such health service, of which Tamworth Base Hospital (which includes the Banksia Mental Health Unit) and the Tamworth Community Health Service are parts". 240 Dr McGregor then said in his affidavit that he had considered the subpoenas addressed to the Tamworth Base Hospital, Ms Hayman and Ms Pierce. He said that certain documents falling within the terms of the subpoenas would be produced, without any objection to the appellant having access. However, objection would be taken to the production of other documents on the ground of sexual assault communication privilege pursuant to s126H of the Evidence Act. These documents included notes relating to the complainant by sexual assault counsellors and by mental health counsellors and psychiatrists. Pars8, 9 and 10 of Dr McGregor's affidavit were in the following terms:- "8. I also object to production of such documents on the ground that production would be injurious to the public interest, both under the common law and because disclosure of the documents would prejudice the proper functioning of the government of the State of New South Wales, that is, the proper functioning of the Department ( Evidence Act 1995, s130(4)(f). 9. I am informed by Ms Carol Bourke, psychologist, and verily believe that (the complainant) probably is continuing to suffer from the long-term effects of the offences alleged against the Accused and that such suffering probably would be seriously aggravated were the records listed in paragraphs 4 and 5 above to be disclosed. 10. If the Department cannot guarantee to its clients that it will not pass on information conveyed in and for the purposes of counselling persons who are or become sexual assault victims, then its failure to do so would result in clients losing their confidence in sexual assault counselling services and in such services ceasing to function effectively. This would be to the detriment of victims of sexual assault, those upon whom they are dependent, the criminal justice system and the public interest, as sexual assault victims probably would be discouraged from endeavouring to rehabilitate themselves by obtaining the benefit of sexual assault counselling, and possibly from reporting sexual assaults". 241 The question of whether the appellant should be permitted to have access to the documents falling within the terms of the subpoenas which the persons subpoenaed objected to produce was argued before Judge Freeman on 31 August and 1 September. Counsel appeared for the New South Wales Department of Health, which was regarded as representing all of the persons who had been served with subpoenas. The same counsel also said that he was appearing for the complainant. The issue to be decided by his Honour was identified by his Honour as being whether the appellant should be granted access to the documents in respect of which privilege was claimed (which I will from now on refer to simply as "the documents"). It would seem that the issue would more appropriately have been identified as being whether the persons subpoenaed were entitled to object to produce the documents on the grounds that the documents were privileged from production but nothing turns on this distinction. (See Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667 especially at 672-3) 242 During the course of the hearing Judge Freeman inquired whether the claim of rape which the complainant had withdrawn, which was referred to in Dr de Groot's letter of 7 January 1997, related to one of the offences which the complainant alleged the appellant had committed. Pursuant to this inquiry made by Judge Freeman, Dr de Groot supplied a further letter dated 1 September in which he said that the charge of rape which the complainant had withdrawn, which had been referred to in his earlier letter of 7 January 1997, did not relate to the matter currently before the court but related to an earlier incident. 243 At the hearing before Judge Freeman counsel for the Department of Health ultimately conceded that the appellant had a legitimate forensic purpose in having access to the documents. However, he submitted that the documents were privileged under Div1B of Pt3.10 of the Evidence Act (Sexual assault communications privilege) or section 130 in Div3 of Pt3.10 (Exclusion of evidence of matters of state). Div1A of Pt3.10 of the Act (Professional confidential relationship privilege) was adverted to but in his judgment of 1 September Judge Freeman said that he saw "no reason to harp back to the earlier provisions in Div1A, when the scheme in Div1B is specifically targeted to the present situation". 244 Div1B of Pt3.10 of the Evidence Act was inserted in the Act by the Evidence Amendment (Confidential Communications) Act 1997 No.122, which commenced on 1 January 1998, and it is necessary to set out a number of provisions of Div1B. In s126G (along with other definitions) the expressions "protected confidence" and "protected counselling communication" are defined as follows:- " Protected confidence means a protected counselling communication made by a person against whom a sexual assault offence has been, or is alleged to have been, committed, whether before or after the acts constituting the offence occurred or are alleged to have occurred". protected counselling communication means a communication made by a person in confidence to another person (in this Division called the counsellor ) in the course of a relationship in which the counsellor is treating the person for any emotional or psychological condition suffered by the person". 245 The offences charged against the appellant are sexual assault offences within the meaning of that expression in Div1B. 246 Section 126H, which is a key provision, should be set out in full:- "Exclusion of evidence of protected sexual assault communications

[67]

(6) A protected confider or counsellor who is not a party to proceedings may, with the leave of the court, appear in the proceedings". 247 Section 126I provides as follows:- "This Division does not prevent the adducing of evidence given with the consent of the protected confider concerned." 248 Section 126J provides that sexual assault communications privilege may be lost by misconduct. Section 126K provides:- "(1) Without limiting any action the court may take to limit the possible harm, or extent of the harm, likely to be caused by the disclosure of evidence of a protected confidence, the court may: (a) order that all or part of the evidence be heard in camera, and (b) make such orders relating to the suppression of publication of all or part of the evidence given before the court as, in its opinion, are necessary to protect the safety and welfare of the protected confider and counsellor, and (c) make such orders relating to disclosure of protected identity information as, in the opinion of the court, are necessary to protect the safety and welfare of the protected confider and counsellor. (2) Nothing in this section limits the power of a court to make an order under section 577A, 578 or 578B of the Crimes Act 1900". 249 Section 126L provides in part as follows:- "(1) This Division does not apply in relation to a proceeding the hearing of which began before the commencement of this Division. (2) This Division applies in respect of a protected confidence whether made before or after the commencement of this Division." 250 It is clear that Div1B applies to the present proceedings, because the hearing of the proceedings had not begun before the commencement of the amending Act (s126L(1)) and it is also clear from s126L(2) that Div1B applies to protected confidences which were made before the commencement of the amending Act. 251 In his judgment of 1 September 1998 Judge Freeman held that the provisions of Div1B, notwithstanding some of the language used and particularly the frequent use of expressions such as "the adducing of evidence", apply to the production of documents on subpoena and the allowing of access to documents produced on subpoena and are not limited to the adducing of evidence in a courtroom in the course of a hearing. Henceforth, I will for the sake of convenience refer to such a holding as a holding that Div1B applies to the production of documents. 252 On the submissions which were put to him Judge Freeman could have reached the conclusion that Div1B applies to the production of documents by either of two paths. His Honour could have found that Div1B applies "directly" to the production of documents, that is that the terms of Div1B, properly construed, apply to the production of documents; or his Honour could have found that Div1B applies "indirectly" or "derivatively" to the production of documents, that is while the provisions of Div1B, properly construed, do not apply to the production of documents, nevertheless the common law applying to the production of documents should be modified so as to accord with the provisions of Div1B applying to the adducing of evidence in a courtroom in a hearing. His Honour was referred to a trilogy of cases, in which it had been held that the provisions of Div1 of Pt3.10 of the Evidence Act, which deals with client legal privilege, apply, not directly, but derivatively, to the production of documents. These cases were Telstra Corporation v Australia Media Holdings & Ors ("Telstra") (1997) 41 NSWLR 277 (McLelland CJ in Equity); Adelaide Steamship Co Limited v Spalvins ("Adsteam") (1998) 152 ALR 417 (Federal Court of Australia Full Court); and Akins v Abigroup Limited ("Akins") (1998) 43 NSWLR 539 (Court of Appeal). Although it is a possible view of one part of his Honour's judgment that his Honour held that Div1B applies directly to the production of documents, I am doubtful whether his Honour did make such a holding. His Honour certainly did hold that Div1B applies derivatively to the production of documents. At p9 of his judgment his Honour said:- "As indicated earlier the Evidence Act deals with admission into evidence but I believe I am compelled by the reasoning of cases which bind me to hold that the principle of the Act applies derivatively to ancillary matters such as the production of document on subpoena and access thereto. In short I find that Division 1B of the Evidence Act applies derivatively to ancillary matters, (the cases of Telstra, Akins and Adelaide Steamship Company all dealing with matters within part 3.10)" 253 Judge Freeman also held that confidential sexual assault communications attract public interest immunity (s130 of the Evidence Act). The public interests to be protected were those identified in the affidavit of Dr McGregor and a statement by Ms Bourke. The statement by Ms Bourke was not read on the hearing of this appeal. 254 Judge Freeman further held that the complainant had not by the letter of 20 December 1996 to the police consented to the production of the documents. 255 Having held that Div1B applied derivatively to the production of documents, his Honour turned to s126H(3). Having inspected the documents produced, his Honour found that they did not have substantial probative value and accordingly the public interest in preserving the confidentiality of the protected confidences and in protecting the protected confider from harm was not substantially outweighed by the public interest in permitting access to the documents and accordingly access to the documents was refused. 256 It appears to me from the reading of Judge Freeman's judgment that his Honour may not always have kept in mind that the only matters that can be privileged under Div1B are "protected confidences", as defined in s126G, that is confidential communications made to a counsellor by a person who is being treated and against whom a sexual assault offence has (allegedly) been committed. In one part of his judgment his Honour said that he could find no warrant in the Act for a distinction sought to be drawn by counsel for the appellant between "medical observations and details of treatment, rather than the alleged victim's own ruminations". However, medical observations and details of treatment would not be "protected confidences", so as to be capable of attracting privilege under Div1B. All that can be protected under Div1B are "the alleged victim's own ruminations" or, more happily expressed, the alleged victim's own confidential communications. 257 The expression "the contents of a document recording a protected confidence" used in Div1B must be read as meaning "the contents of a document insofar as they record a protected confidence". The provisions of Div1B do not apply to the whole of the contents of a document simply because somewhere in the document a protected confidence is recorded. 258 A preliminary question which arose on the hearing of the appeal was whether the decision of this Court in R v N (unreported 21 July 1998) had resolved the issues between the parties. In R v N an accused person had caused a number of subpoenas for production to be issued. Objection was taken to the production of some of the material subpoenaed on the grounds of Div1B. In R v N the issue was, without argument, treated as resolved by District Court Rules Pt29 r1 and r11. Pt29 of the District Court Rules deals with subpoenas. Pt29 r11 provides:- "Nothing in this Part compels a person on whom a subpoena is served to produce a privileged document or thing". 259 In r1 "privileged document or thing" is defined as including a document of which evidence could not be adduced in an action over the objection of any person by virtue of the operation of Pt3.10 of the Evidence Act. However, in the present appeal it was, in my opinion, conclusively demonstrated and it was accepted by all parties, that Pt29 of the District Court Rules was made in exercise of the power to make civil procedure rules for the District Court and does not apply to criminal proceedings. As what was said by this Court in R v N was said without the benefit of argument and would appear to be clearly incorrect, this Court should decline to follow R v N. (R v Mai 60 A Crim R 49 at 60). It should be noted that on 8 December 1998 leave to re-open the decision in R v N was refused. 260 The present appeal was first argued on two days in November 1998 before a Bench consisting of three judges, Abadee J, James J and Barr J. After the Court had reserved its decision the Full Court of the Federal Court on 22 December 1998 handed down its decision in Esso Australia Resources Ltd v Commission of Taxation of the Commonwealth of Australia ("Esso"), another case dealing with Div1 of Pt310, in which the Court (consisting of five judges) overruled the earlier decision of the differently constituted Full Court of the Federal Court in Adsteam. 261 Also after this Court had initially reserved its decision, the High Court on 3 December 1998 heard argument in BT Australasia Pty Ltd v State of New South Wales ("BT"). In the course of the argument submissions were made that Adsteam had been wrongly decided and certain comments were made by some judges of the High Court about the derivative application of a statute so as to modify the common law. As it seemed that a decision by the High Court in BT might well have assisted this Court, this Court still constituted by the same three judges indicated at a mention of the present appeal in February 1999 that it would (within limits) defer giving judgment in the present appeal until after the High Court had handed down its decision in BT. However, no decision has been handed down by the High Court and we have in fact been informed that the BT litigation has been settled and that no decision will be given by the High Court. 262 On 11 March 1999 the High Court handed down its decision in Northern Territory of Australia v GPAO & Ors (1999) 73 ALJR 470, in which members of the Court made comments on the scope of the Commonwealth Evidence Act and whether that Act applies to the production of documents on subpoena or the giving of leave to inspect documents produced on subpoena. 263 Having regard to the conflicting authorities and particularly the decision of the Bench of five judges of the Federal Court in Esso, the Bench hearing this appeal was, with the consent of the parties, enlarged to five judges by the addition of the Chief Justice and Beazley JA and the enlarged Bench heard further argument on 29 March 1999 and then reserved its decision. After this Court reserved its decision the High Court granted special leave to appeal in Esso but the appeal has not yet been heard. 264 In my opinion, the issues on this appeal can be formulated as follows:- 265 1. Do the provisions of Div1B of Pt3.10 of the Evidence Act, properly interpreted, apply directly to the production of documents recording protected confidences within the definition of that expression in s126G. 266 2. If the provisions of Div1B of Pt3.10 do not, properly interpreted, apply directly to the production of documents recording protected confidences, do they nevertheless apply indirectly or derivatively. 267 3. If the provisions of Div1B apply either directly or derivatively to the production of documents recording protected confidences, did the complainant in the present case consent to the production of the documents which had been subpoenaed. 268 4. Whether or not the provisions of Div1B apply either directly or derivatively to the production of documents recording protected confidences, should protected confidences and documents recording protected confidences be recognised as forming a new category of public interest immunity.

[68]

Do the provisions of Div1B of Pt3.10 of the Evidence Act properly interpreted apply directly to the production of documents recording protected confidences within the definition of that expression in s126G. 269 The principal submissions made on behalf of the appellant were:- 270 (i) If the words used by the legislature in Div1B are interpreted according to their natural, ordinary meaning, then they should be interpreted as meaning that sexual assault communications privilege under Div1B is limited to the adducing of evidence at a hearing and does not apply to the production of documents on subpoena. There is a well recognised distinction between the adducing of evidence and the production of documents on subpoena. 271 (ii) The three cases which were referred to in Judge Freeman's judgment and which were relied on by the respondents at the hearing of the present appeal, namely Telstra, Adsteam and Akins, do not support a submission that Div1B applies directly to the production of documents and are indeed contrary to such a submission. 272 (iii) Before the enactment of Div1B, if a subpoena for the production of records of sexual assault communications was issued and served on behalf of a person accused of a sexual assault, then, subject to the existence of any ground for setting aside the subpoena, the records would have had to have been produced to the court and, subject to the accused demonstrating a legitimate forensic purpose, the accused would have been permitted access to the records. Accordingly, it was submitted that the provisions of Div1B should be interpreted according to a principle of statutory construction that clear words are required to abrogate common law rights and especially the rights at common law of a criminal accused (see Akins at 547). 273 The essential submissions which were made on behalf of the Health Service, which were supported by the Attorney-General, were:- 274 (i) The Court is authorised, and indeed required, to adopt a purposive approach in interpreting the provisions of Div1B. 275 (ii) The legislative purpose of Div1B can be ascertained by reference to certain extrinsic materials. 276 (iii) The legislative purpose of Div1B, as ascertained by reference to those extrinsic materials, would be defeated in an important respect, if the Division was not interpreted so as to apply to the production of documents, as well as the adducing of evidence in the course of a hearing. 277 (iv) In order to fulfil the legislative purpose, the Court should interpret the provisions of Div1B so that they apply to the production of documents on subpoena, even if this means straining the ordinary meaning of the words the legislature chose or actually adding to the words the legislature chose. 278 It is necessary to consider in more detail the submissions made by the parties. 279 The first submission made on behalf of the appellant should be accepted. Indeed, it was not suggested by counsel for the Health Service or counsel for the Attorney-General that, if the words in Div1B were literally interpreted according to their ordinary, natural meaning, they would apply to the production of documents. The terms "adducing" (or cognate terms) and "evidence" are used repeatedly in s126H and also occur in s126I and s126J. Section 126K refers to the disclosure of evidence, the hearing of evidence in camera and the giving of evidence before the Court. As Black CJ and Sundberg said in their joint judgment in Esso (at p5) with respect to ss118 and 119 in Div1 of Pt310 of the Federal Evidence Act, both of which commence with the words "Evidence is not to be adduced":- "Sections 118 and 119 both prohibit the adducing of evidence of communications. To produce a document in a discovery context is not to adduce evidence. The plain meaning of the sections is that they prohibit the putting forward of a communication as evidence in Court". 280 Although in Esso Black CJ and Sundberg J were referring to ss118 and 119 in Div1 of Pt310 of the Federal Act and to the discovery of documents and not the production of documents on subpoena, what they said is equally applicable to the provisions of Div1B in Pt310 of the New South Wales Act and to the production of documents on subpoena. 281 It must also be accepted that there is a distinction between the adducing of evidence and the discovery of documents or the production of documents on subpoena. Documents may have to be discovered or produced on subpoena, even though they would not be admissible in evidence. Furthermore, such documents, even if not admissible in evidence, may assist a party to whom the documents are discovered or produced, for example by leading to a train of enquiry. See Esso at pp6-7 per Black CJ and Sundberg J. 282 The second submission made on behalf of the appellant should also be accepted. As I have already stated, each of the three cases Telstra, Adsteam and Akins was concerned with Div1 of Pt 310 of the relevant Act, which deals with client legal privilege. In each of the three cases it was held that the provisions of Div1 do not, on their true construction, apply to ancillary processes such as the production of documents in answer to subpoenas (Telstra at 278, Adsteam at 427 and Akins (by implication) at 546). 283 Furthermore, in Esso a majority of the Full Court of the Federal Court (Black CJ, Sundberg J and Finkelstein J) held that ss118 and 119, on their true construction, bear their ordinary literal meaning and do not apply to ancillary processes. However, it is to be noted that Black CJ and Sundberg J, after referring to the reports of the Australian Law Reform Commission (and especially para199 of the final report of the Australian Law Reform Commission), which led to the enactment of both the Federal Act and the New South Wales Act, concluded that:- "In our opinion the plain language of the sections is confirmed by the only directly relevant extrinsic material, which shows that Parliament intended the consequence that is said by the appellant to be anomalous. Especially when different views can be held about whether the consequence is anomalous on the one hand or acceptable or understandable on the other, the Court should be particularly careful that arguments based on anomaly or incongruity are not allowed to obscure the real intention, and choice, of the Parliament. For the above reasons we are unable to conclude that the operation of ss118 and 119 on a literal reading does not conform to the legislative purpose". 284 The other member of the majority of the Court in Esso on this issue, Finkelstein J, relied on a number of reasons for reaching his conclusion that ss118 and 119, properly construed, did not apply to ancillary processes, including, apart from the language of the sections, the general scheme of Pt310, the extrinsic materials (the reports of the Australian Law Reform Commission) and that there was no "very clear indication" that the Parliament intended to impose greater restrictions than would be imposed by a literal interpretation of ss118 and 119 and that the purpose of ss118 and 119 was not "to protect from disclosure certain confidential communications" but "to ensure that evidence in respect of the topics dealt with is not to be adduced or given in a proceeding". 285 The other two members of the Court in Esso (Merkel J, with whom Beaumont J agreed) dissented on this issue. At p38 Merkel J said inter alia:- "…to confine the prohibition in ss118 and 119 to the adducing of evidence… and not extend it to the ancillary evidence gathering processes is inconsistent with the Act, is unreasonable and would tend to frustrate and defeat an important object and purpose of the amendments… put another way, it is implicit in the expressed prohibition in ss118 and 119 against evidence being adduced in respect of confidential communications that satisfy the "dominant purpose" test that the same test would apply in the Court's ancillary processes for the purpose of determining the evidence to be adduced". 286 Before dealing with the third submission made on behalf of the appellant, it is convenient to turn to the submissions made on behalf of the respondents. 287 In support of the submission that the Court is required to adopt a purposive approach in interpreting the provisions of Div1B, a number of authorities were cited. 288 Counsel for the Health Service relied particularly on some judicial pronouncements on statutory construction by McHugh J, particularly as a judge of the New South Wales Court of Appeal in Kingston v Kiprose Pty Limited (1987) 11 NSWLR 404 and as a justice of the High Court in Saraswati v The Queen (1991) 172 CLR 1. In Kingston v Kiprose at pp421-424 under the heading "Modern Approach to Statutory Construction" McHugh JA said inter alia:- "Ascertaining the ordinary grammatical meaning of a legislative provision is only the first step in the process of statutory construction. If the consequences of the literal or grammatical construction raise a real doubt as to Parliament's intent, the court is justified in refusing to give the words their literal or grammatical construction. * * * However, it is not only when words have been inadvertently used that a court is empowered to give a legislative provision a strained construction. A strained construction may be justified because words have been omitted. * * * As many of the cases show, the purpose of the legislation may require a meaning to be placed on the words of a particular provision which, standing alone, they cannot reasonably bear". * * * In Jones v Wrotham Park Settled Estates [1980] AC 74, Lord Diplock said (at 105) that if the application of the literal or grammatical meaning would lead to results which would defeat the purpose of a statute the court may read words into the legislation. But his Lordship said that words could only be read into a statute if three conditions were fulfilled. First, the court must know the mischief with which the Act was dealing. Secondly, the court must be satisfied that by inadvertence Parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved. Thirdly, the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect. * * * A purposive and not a literal approach is the method of statutory construction which now prevails. In most cases the grammatical meaning of a provision will give effect to the purpose of the legislation. A search for the grammatical meaning still constitutes the starting point. But if the grammatical meaning of a provision does not give effect to the purpose of the legislation, the grammatical meaning cannot prevail. It must give way to the construction which will promote the purpose or object of the Act. The Acts Interpretation Act 1901 (Cth), s15AA and the Interpretation Act 1987 (NSW), s33, both require this approach to statutory construction". * * * Once the object or purpose of the legislation is delineated, the duty of the Court is to give effect to it in so far as, by addition or omission or clarification, the relevant provision is capable of achieving that purpose or object. Where the court can see the purpose of a provision from an examination of its terms, little difficulty should be met in giving effect to that purpose. The days are gone when judges, having identified the purpose of a particular statutory provision, can legitimately say, as Lord Macmillan said in Inland Revenue Commissioners v Ayrshire Employers Mutual Insurance Associate Ltd [1946] 1 All ER 637 at 641, of the means used to achieve the purpose: 'The legislature has plainly missed fire'. Lord Diplock, in an extra judicial comment on that decision has said, that 'if…the Courts can identify the target of Parliamentary legislation their proper function is to see that it is hit: not merely to record that it has been missed': 'The Courts As Legislators", The Lawyer and Justice (Sweet & Maxwell) (1978) at 27. 289 This passage in the judgment of McHugh JA in Kingston v Kiprose was referred to with approval by Mason CJ, Deane J, Dawson J, Toohey J, Gaudron J and McHugh J in their joint judgment in Bropho v Western Australia (1990) 171 CLR 1 at 20. 290 In the part of his judgment in Kingston v Kiprose which I have quoted, McHugh JA referred to s33 of the New South Wales Interpretation Act. This section provides that a construction that would promote the purpose or object underlying a statute is to be preferred to a construction that would not promote that purpose or object. 291 In the part of his judgment in Kingston v Kiprose which I have quoted, McHugh JA also referred to the speech of Lord Diplock in Jones v Wrotham Park Settled Estates which is in fact reported in (1980) AC as Wentworth Securities Ltd v Jones. In his speech in Wentworth Securities Ltd v Jones Lord Diplock stressed that the third condition for reading words into legislation is essential. His Lordship said:- "Unless this third condition is fulfilled any attempt by a court of justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed. Such an attempt crosses the boundary between construction and legislation. It becomes a usurpation of a function which under the constitution of this country is vested in the legislature to the exclusion of the courts". 292 In Wentworth Securities Ltd v Jones itself Lord Diplock found that the third condition propounded by him was not satisfied. In the recent decision of the High Court in James Hardie & Coy Pty Limited v Seltsam Pty Limited (1998) 73 ALJR 238, Kirby J at par73 referred to Lord Diplock's speech in Wentworth Securities Ltd v Jones and said that Lord Diplock's approach to statutory construction now prevails throughout the common law world. His Honour added:- "Today, unless driven to the result by unyielding words, no judicial satisfaction is to be derived from concluding that the manifest target of legislation has been missed".

[70]

In Saraswati Toohey J agreed with McHugh J's judgment. 293 Counsel for the Health Service referred to CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408, where Brennan CJ, Dawson, Toohey and Gummow JJ said:- "It is well settled that at common law, apart from any reliance upon s15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy". 294 This passage in the joint judgment in CIC Insurance Limited was quoted by McHugh J in his judgment in Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 112-13. His Honour then proceeded to sound a cautionary note, saying at p113:- "Extrinsic material cannot be used to construe a legislative provision unless the construction of the provision suggested by that material is one that is 'reasonably open'. Even if extrinsic material convincingly indicates the evil at which a section was aimed, it does not follow that the language of the section will always permit a construction that will remedy that evil. If the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances. As Brennan CJ and I said in IW v City of Perth (1997) 191 CLR 1 at 12, even when a court adopts a purposive construction to remedial legislation it 'is not at liberty to give it a construction that is unreasonable or unnatural'". 295 Nevertheless, in Newcastle City Council v GIO McHugh J found that each of Lord Diplock's three conditions were satisfied and accordingly words which were not expressed in s40 of the Insurance Contracts Act (Commonwealth) could be read into the section. 296 In order to ascertain the legislature's purpose in enacting a piece of legislation a court can have regard to the terms of the legislation itself and to various extrinsic materials, including the materials expressly referred to in ss(2) of s34 of the Interpretation Act. Such materials include any relevant report of a committee of inquiry or similar body (para(b)), any explanatory note or memorandum relating to the Bill for the Act (para(e)) and the Second reading speech of the Minister on moving that the Bill for the Act be read a second time (para(f)). 297 In the present appeal counsel for the Health Service relied particularly on the Second reading speech made by the Attorney General in the Legislative Council on 22 October 1997 in moving that the Evidence Amendment (Confidential Communications) Bill be read a second time. The Attorney General commenced his speech by saying:- "It goes without saying that a person who has suffered the grave trauma of sexual assault will often be assisted in recovery by seeking counselling. The counselling relationship, built on confidentiality, privacy and trust, 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. One counsellor has said: 'When I have told clients that the counselling notes of our session may be subpoenaed I have had experience of clients leaving counselling, and in another case a client deliberately censored herself in discussing issues in counselling'. Knowing that a perpetrator has had access to counselling files can further traumatise victims and increase their sense of powerlessness. One victim said: 'My files were subpoenaed. It wasn't the court seeing them, the judge and the lawyers, that worried me so much because I knew that they could only support my case if I was given a chance to speak about them. What made me feel really upset was that my stepfather, who had raped me, would see them. He was lying about not having done it and I could just imagine him going through my personal records. It was like having him invade my life again'". 298 Later in his speech the Attorney General dealt with the arguments in favour of a specialised sexual assault communications privilege. The first two arguments mentioned were that the general privilege in Div1A of the Bill would not sufficiently protect sexual assault communications and that the primary purpose of counselling is not investigative but therapeutic. The further arguments were as follows:- "Thirdly, it was argued that the failure to accord counselling records a privilege has had the following consequences: some victims choose not to obtain counselling; some obtain counselling but are guarded about what they reveal; some victims refuse to report the crime or be a witness for the prosecution; some counsellors do not take notes; some counsellors take notes which are cryptic and cannot be understood by others; and some counsellors refuse to hand over the notes and are charged with contempt. These are undesirable outcomes. Where a victim refuses to initiate court proceedings or undergo counselling, or to the extent to which the openness of the counselling relationship is constrained, both the interests of the victim and the interests of the community in general are harmed. Fourthly, many of the submissions suggested that defence counsel are increasingly using subpoenas for the production of counselling records as a weapon to intimidate the complainant. This is not a justifiable use of the laws of evidence. Finally, a common concern expressed in the submissions related to the fact that being a victim of sexual assault can be a humiliating and/or terrifying experience. It was argued that allowing the accused and the 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. In the light of these arguments, I propose in this legislation to supplement the general provision with a more specific privilege. It will presume that things said in confidence by a victim of sexual assault to her counsellor (and notes of such communications) are inadmissible as evidence. The onus will be placed on the defence to argue that any such material will substantially assist in the defence of an accused and that such evidence cannot be obtained from alternative sources. The value of the information to the defence will have to substantially outweigh both the public interest in protecting the confidentiality of sexual assault counselling relationships and the risk of harm to the complainant that may be caused by disclosure. Only those parts which meet the test will be disclosed to the defence and the judge will be able to prevent the disclosure to the accused of details which might identify the complainant's whereabouts". 299 Counsel for the Health Service also relied on part of the explanatory note for the Evidence Amendment (Confidential Communications) Bill 1997. The explanatory note said in part:- "Creation of the new categories of privilege for these kinds of confidential communications will also provide a ground for a person to object to the production of a document by subpoena on the ground that to do so would disclose such a communication". 300 Counsel also made reference to a discussion paper of June 1996 headed "Protecting confidential communications from disclosure in court proceedings", which was referred to by the Attorney General in his Second reading speech. This discussion paper includes the following paragraphs:- "1.2 Most recently, attention was focussed on the issue by the resistance of a social worker to compliance with a subpoena in a sexual assault case. The client notes containing confidential communications to a rape crisis counsellor were handed over (in a locked brief case) to the Queanbeyan Local Court after the social worker spent four hours in the lock up. The magistrate at the committal hearing decided that the matter should be determined by the trial judge.

[71]

4.12 There is a concern that certain of the relationships concerned fail to operate effectively without a privilege, particularly in relation to communications specifically made in contemplation of litigation. An example where litigation is in contemplation is sexual assault counsellors and their clients. Anecdotal evidence supports the view that clients have left counselling and/or withdrawn their complaint when informed that the notes of counselling sessions may be subpoenaed. In other cases, clients have censored themselves, to the detriment of the counselling relationship. Evidence in the USA supports the view that clients who know their files may be used in evidence will seek anonymity and/or refuse counselling." 301 After this survey of the extrinsic materials for ascertaining the purpose of Div1B, counsel for the Health Service submitted that the clear purpose of Div1B was to strictly limit disclosure, whether to a court or to the person alleged to have committed the sexual assault, of confidential sexual assault counselling communications made by the victim of the alleged assault, that that purpose would be defeated in an important respect if documents recording such communications could be subpoenaed, without the limitations and restrictions in Div1B applying, and to achieve that purpose the court was authorised and required to interpret Div1B as applying to the production of documents on subpoena, even though that meant straining the ordinary meaning of the words used or adding to the words used. The court should ensure that the legislature had hit its target and not merely record that the legislature had missed its target. 302 Counsel for the Health Service submitted that, although similar language was used in Div1B and Div1 ("evidence is not to be adduced"), the difference in the legislative purposes to be fulfilled by the two Divisions warranted the giving of different interpretations to similar language. The extrinsic materials which could be referred to to ascertain the legislative purpose of Div1B showed that the legislative purpose included that the legislation should apply to the production of documents on subpoena. The extrinsic material which could be referred to to ascertain the legislative purpose underlying Div1 showed that the purpose was restricted to creating a privilege which would apply only to the adducing of evidence in court in the course of a hearing. In Telstra McLelland CJ in Eq referred to the Australian Law Reform Commission Report which preceded the enactment of the original Evidence Act, including Div1 of Pt3.10. His Honour observed at 278:- "If, pursuant to s3(3) of the Act and s34 of the Interpretation Act 1987, consideration is given to ALRC Report No 38, 'Evidence', it seems clear that the expression 'adducing of evidence' in the corresponding clauses of the draft Bill was not intended to include ancillary processes, because the Law Reform Commission considered that its terms of reference limited it 'to considering the application of the privilege in the court room where evidence is sought to be given' and not, for example, to discovery: see par 199 of the report and cll 106-108 of the draft Bill in annexure A to the report". 303 As I have already stated, in Esso Black CJ and Sundberg J relied on the reports of the Australian Law Reform Commission, and particularly para199 of the final report, in reaching the conclusion that the interpretation indicated by the language of ss118 and 119 should not be departed from, as did Finkelstein J in his separate judgment. 304 It was submitted that the discussion paper of June 1996, the explanatory memorandum and the Attorney General's Second reading speech are in stark contrast to this passage in the Australian Law Reform Commission Report. 305 It was put by counsel for the Health Service that a further reason for interpreting Div1B as applying to the production of documents is that, while a distinction can be drawn between rights of inspection and rights of adducing into evidence, because inspection of a document, even if it is inadmissible in evidence, "may prompt a train of inquiry or facilitate preparation of cross-examination" (see Akins per Mason P at 546), nevertheless it would be anomalous if there were different rules applying to the same privilege at different stages in the litigation process. The court should avoid this anomaly by interpreting Div1B so as to apply both at the stage of the production of documents and at the stage of the adducing of evidence in court. 306 It was submitted by counsel for the Health Service that of the three conditions postulated by Lord Diplock in Wentworth Securities Ltd v Jones for the reading of words into a statute, the first two could be seen to be readily satisfied. The mischief with which the Act was dealing could be clearly identified. The production of documents on subpoena was a matter which had to be dealt with, if the purpose of the Act was to be achieved. It was submitted that the third condition was also satisfied, in that it was possible to state what words Parliament would have used to overcome the omission, if its attention had been drawn to the defect. I attach as an appendix to this judgment a document in which the words, which it is submitted would have been used, are inserted in the provisions of Div1B and underlined. 307 It was finally submitted that little weight should be given in the present context to any presumption against the statutory abrogation of common law rights, including the rights of a criminal accused (the appellant's third submission). In the present case it was clear that the sexual assault communications privilege in Div1B would apply mainly, if not exclusively, in criminal cases. Even on a narrowly literal interpretation of Div1B, the Division severely restricted use by an accused person of confidential sexual assault communications by the alleged victim, in the conduct of the accused person's defence. The extrinsic materials indicated with transparent clarity that the Division was intended by the legislature to apply to the production of documents on subpoena. 308 In my opinion, a number of the submissions made by counsel for the Health Service and supported by counsel for the Attorney-General can be upheld, without any difficulty. Although, as was conceded on all sides, the words chosen by the legislature do not, according to their ordinary literal meaning, apply to the production of documents on subpoena, the Court is required by statute and by recent authorities on statutory interpretation to adopt a purposive, and not a literal, approach to interpreting Div1B. To ascertain the purpose of the legislation the Court may have regard to the extrinsic materials to which we were referred. It is clear from those extrinsic materials that the legislative purpose underlying Div1B included a purpose of strictly limiting access by a person accused of a sexual assault offence to records of confidential sexual assault counselling communications by the victim of the alleged offence. In interpreting the provisions of Div1B the Court should strive to fulfil this purpose, and not frustrate it, even if this involves straining or adding to the language the legislature has chosen. 309 I would accept that the decisions in Telstra and Esso on the interpretation of similar language occurring in Div1 of Pt 310 of the Evidence Act depended, at least to some extent, on the quite different extrinsic materials to which regard could be had in interpreting those provisions. There is also force in the submissions made by counsel for the respondents that to interpret the provisions of Div1B so that they apply only to the adducing of evidence in a Court at a hearing would be to bring about a serious anomaly and that less weight should be given to the presumption against the statutory abrogation of common law rights, for the reasons given by counsel for the Health Service. 310 It seems to me that the present issue turns largely on whether the interpretation urged by counsel for the respondents is "reasonably open" or whether the language actually used by the legislature intractably or unyieldingly covers only one state of affairs (the adducing of evidence in a court at a hearing) and cannot be "tortured" so as to apply to another set of circumstances (the production of documents on subpoena) and on whether the third condition stated by Lord Diplock in Wentworth Securities Ltd v Jones can be satisfied or whether the attempt by counsel for the Health Service to add words to the provisions of Div1B crosses the boundary between construction and legislation. 311 As I have already indicated, the interpretation urged by counsel for the respondents is confronted by the serious difficulty that the provisions of Div1B consistently and repeatedly refer exclusively to the "adducing of evidence" as the field in which those provisions are to operate. 312 A conclusion that the Evidence Act does not apply otherwise than to the adducing of evidence in a court is supported by comments made by members of the High Court in Northern Territory v GPAO about the Commonwealth Evidence Act. At par16 Gleeson CJ and Gummow said:- "The Evidence Act (that is the Commonwealth Evidence A ct ) is concerned with the adducing of evidence (Ch2), the admissibility of evidence (Ch3), proof (Ch4) and certain ancillary matters (Ch5). It does not dealt with the obligations of a party to whom an order in the nature of a subpoena is addressed to produce documents to the court in question. Nor does the Evidence Act deal with the grant of leave by the court to inspect or otherwise make use of documents which have been produced in answer to a subpoena".

[72]

At par199 McHugh J and Callinan J in their joint judgment said:- "As Gleeson CJ and Gummow J point out in their judgment, that Act (the Evidence Act) does not deal with the obligations of a person to produce documents on subpoena or the grant of leave by a court to inspect or make use of documents produced on subpoena". 313 The scheme of the New South Wales Evidence Act is the same as the scheme of the Commonwealth Evidence Act and most of the provisions of the two Acts are identical. 314 There are, moreover, other difficulties in the way of finding for the respondents, apart from the language used in Div1B to which I have already referred. These difficulties arise from the structure of s126H, which is the key provision in Div1B. Under s126H(1) evidence is not to be adduced if it would disclose a protected confidence or the contents of a document recording a protected confidence, unless the court gives leave. Under subs(3) a court is not to give leave unless it is satisfied that the three conditions set out in the subsection are satisfied. Under subs(5) the court must state its reasons for giving or refusing leave. Under subs(2) evidence of a protected confidence or of the contents of a document recording a protected confidence is not to be adduced, unless reasonable notice in writing of the intention to adduce the evidence has been given to each other party and the protected confider and the counsellor (if they are not parties). 315 As to notice under subs(2), notice of intention to subpoena documents recording protected confidences could be given by service of the subpoena or by giving written notice of the subpoena to persons who are not the recipient of the subpoena. 316 The provisions of subs(3) are more troublesome. In performing the weighing or balancing process required by subs(3), the Court is required to determine whether "the evidence" has "substantial probative value". "Probative value" is defined in the dictionary at the end of the Act as meaning the extent to which the evidence in question could rationally affect the assessment of the probability of the existence of a fact in issue. "Probative value" and "substantial probative value" are concepts which are appropriate to evidence which is being adduced but much less appropriate to the contents of a document which has been subpoenaed. A document which has been subpoenaed may be of substantial forensic value to a party who issued the subpoena, for example by indicating a line of enquiry, even though it is inadmissible and therefore, presumably, has no "probative value". 317 Furthermore, a court performing the weighing process under subs(3) will have to determine inter alia whether "the evidence" has substantial probative value, either by itself "or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence" (para(a)). If the Act is to be applied to the production of documents, then "the party seeking to adduce the evidence" would have to be the party who has issued the subpoena and requires production of the documents. A court will not know of its own knowledge what evidence is to be adduced by the party seeking to require production of the document and in order to discharge its function the court will have to enquire of the party who issued the subpoena what other evidence is to be adduced by that party. Such an enquiry is likely to lead to difficulties, particularly if the subpoena for the production of documents is returnable prior to the commencement of the trial or even at the commencement of the trial. 318 I have concluded that the first issue I have formulated should be answered "no". The provisions of Div1B of Pt310 of the Evidence Act, properly interpreted, do not apply directly to the production of documents recording protected confidences within the definition of that expression in s126G. 319 2. If the provisions of Div1B of Pt3.10 do not, properly interpreted, apply directly to the production of documents recording protected confidences, do they nevertheless apply indirectly or derivatively. 320 When the case was further argued on 29 March this year before the Bench of five judges, the submission that the provisions of Div1B of Pt310 apply indirectly or derivatively to the production of documents recording protected confidences was not pressed by counsel for the respondents. However, the submission was fully argued in November last year and it is desirable to respond to the submission. 321 A submission that the provisions of Div1B apply derivatively is necessarily alternative to a submission that the provisions of Div1B apply directly. If the provisions apply directly, then they do not apply derivatively and vice versa. 322 At the time the appeal was first argued in November 1998 Esso had not been decided and the argument focussed on Telstra, Adsteam and Akins. In all of those cases it was held that the provisions of Div1 of Pt3.10 do not apply directly to ancillary processes, such as the production of documents on subpoena, but do apply derivatively. The meaning of saying that the provisions apply "derivatively" to such matters as the production of documents on subpoena is explained in these cases. As was said by the Full Court of the Federal Court in Adsteam at 428:- "We accept, necessarily, that in ancillary processes it is the common law that determines the availability of a client legal privilege claim. In our view the issue that needs to be faced is what are the common law principles that are to be so applied. * * * In our view such is the significance of the Act's provisions…that their advent has created an entirely new setting to which the common law must now adapt itself, and adapt itself in such a way as to 'include [the Act] as a fundamental part of its fabric". 323 In other words, the production of documents is governed by the common law and not by the Act but the common law applying to the production of documents on subpoena must be adapted or modified so as to accord with the Act. 324 It is necessary to examine the reasons which led the three courts to conclude that Div1 of Pt3.10 applies derivatively to ancillary processes such as the production of documents on subpoena. 325 In Telstra McLelland CJ in Eq gave three reasons for his conclusion. Firstly, "As Dawson J observed in Baker v Campbell (1983) 153 CLR 52 at 126: 'The common law doctrine of legal professional privilege emerged in the sixteenth century as a natural exception to the then novel right of testimonial compulsion.' Subsequently, the doctrine established in the context of testimony at a trial was extended to ancillary processes, as those processes themselves emerged and developed. In this sense the principles of legal professional privilege applicable to testimony at a trial provide the paradigm, and the extension of the same principles to ancillary processes was derivative in nature. Accordingly, any change to the paradigm should rationally be reflected in the derivatives."

[75]

This reason can conveniently be called "the impractical consequences reason". 326 The same three reasons, the paradigm reason, the anomaly reason and the impractical consequences reason, were relied on by the Full Court of the Federal Court in Adsteam. The same three reasons were relied on by Mason P in Akins. His Honour also relied on what he called "the gravitational pull of statutes" and the reason that Div1 of Pt3.10 did not abrogate, but rather modified, common law rights. His Honour also relied on the decision of the Full Court of the Federal Court in Adsteam as being a highly persuasive precedent. 327 Of the reasons given in these three cases dealing with Div1, the paradigm reason does not apply to Div1B or at least does not apply in an unmodified way. There was no sexual assault communications privilege at common law, originating in the context of testimony at a trial. Indeed there was no sexual assault communications privilege at common law at all. However, the anomaly reason and the impractical consequences reason would be applicable. 328 It was submitted on behalf of the Attorney General in November 1998 that a variant of the paradigm reason is available. The adducing of evidence in court at a hearing should be regarded as central and the production of documents on subpoena should be regarded as ancillary. The legislature has enacted provisions which apply to the central process of the adducing of evidence in court. The court should change the common law, so as to recognise a privilege at common law in an ancillary process such as the production of documents on subpoena, which would be governed by the same rules as apply under the Act to the central process of the adducing of evidence in court. It was submitted that the court should take this step, even though in the case of sexual assault communications, the court would be recognising a new privilege at common law and not simply adapting an existing common law privilege. 329 Another possible distinction between Div1 and Div1B is that by virtue of s123 of the Act client legal privilege will only rarely prevent the adducing of evidence by a criminal accused. On the other hand, it is clear from the provisions of Div1B that Div1B will operate mainly, if not exclusively, in criminal proceedings so as to prevent the adducing of evidence by an accused in criminal proceedings. 330 It was submitted on behalf of the respondents that in deciding whether the provisions of Div1B apply derivatively, reference could be made to the extrinsic materials evidencing the purpose of Div1B and, even if the Court was prevented, by the intractability of the language chosen by the legislature, from holding that the provisions of Div1B apply directly, nevertheless the Court should fulfil the evident purpose of Div1B by changing the common law in an area not directly covered by Div1B but clearly within the legislative purpose underlying Div1B. The Court would be acting in an incremental way to supplement the statute. 331 The whole subject of "derivative " application of the provisions of the Evidence Act so as to change the common law has been transformed by the decision of the Full Court of the Federal Court in Esso, which, as I have stated, was handed down after the present appeal was first argued. In Esso four of the five members of the Court held that ss118 and 119 in Div1 of Pt310 could not be applied derivatively so as to modify the common law relating to an ancillary process and that the previous Full Court in Adsteam had erred in coming to a contrary conclusion. The members of the Court in Esso tended to prefer the term "analogical use of the statue" but that concept is identical with "derivative application" of the statute. The fifth member of the Court, Beaumont J, having held that the statutory provisions applied directly, said that he did not need to consider the analogical use of the statue. 332 It is necessary to examine the reasons given by the members of the Court other than Beaumont J for their conclusion that ss118 and 119 in Div1 of Pt310 could not be applied derivatively or analogically. 333 Black CJ and Sundberg J, after a survey of American authorities and especially the decision of the Supreme Court of the United States in Moragne v States Marine Lines (1970) 398 US 375, in which the Supreme Court held that an action for wrongful death by a widow of a longshoreman could be brought in circumstances where the relevant statute did not permit such an action, said at pp11 and 12:- "The two features of Moragne that were important in the result were the existence of 'numerous and broadly applicable' wrongful death statutes, and the absence of any indication in the legislation of an intention to preclude the judicial allowance of a remedy for wrongful death outside the area of the maritime domain in which recovery was expressly permitted. Comparable features do not exist in the present case. Only the Commonwealth and one State, New South Wales, have adopted the Law Reform Commission's Report and have displaced the sole purpose test in relation to client legal privilege. This limited coverage of the relevant jurisdictions does not enable it to be said that there exists a public policy that privilege should exist in respect of communications made or prepared for the dominant purpose of seeking legal advice or for use in litigation".

[77]

Merkel J, after referring to a number of authorities including High Court decisions, said at pp30 and 31:- "Although I accept the role of the analogical use of statutes in developing the common law of Australia, the statutory limitations on the exercise of Commonwealth legislative power under the Constitution and, subject to the Constitution, the extensive legislative power conferred on State and Territory Parliaments, would usually require extensive legislative action before the doctrine is capable of being attracted. Such a requirement was explicitly recognised in Moragne and appears to have been implicitly recognised by Gibbs CJ in Osmond at 568 and Kirby P in Ralevski at 493". * * * "Whilst it is true that the Full Court in Adelaide Steamship confined its decision to modification of the common law only 'in Evidence Act jurisdictions', for the reasons set out above such an approach is impermissible. It is in the nature of the common law that it is 'subject to affection by the exercise of legislative power' by excluding, confirming or assuming the continued operation of the common law. However, in Australia legislative power cannot fragment the common law so that its content differs within the Commonwealth. Thus, to the extent the common law is inconsistent with the operation of a statute the statute might abrogate or supersede the common law but only to the extent of the inconsistency. To the extent the common law is not abrogated or superseded by the statute it remains part of the common law of Australia. Thus there is not, and cannot be, a different common law 'in Evidence Act jurisdictions' even if that phrase was intended to be confined to proceedings governed by the Evidence Act ". 335 Merkel J also said that there was "a further difficulty" with the decision in Adsteam arising from the previous decision of the High Court in Grant v Downs. 336 Finkelstein J held that there were "at least four reasons that either alone or in combination negate the possibility that the common law should adapt to ss118 and 119". Three of the reasons given relate specifically to client legal privilege and the High Court decision in Grant v Downs. However, the second reason given by his Honour was:- "Second, it is by no means apparent how one piece of legislation (or two if the Evidence Act (NSW) is taken into account), being legislation that operates in one confined area, not confined because of the absence of legislative power but by legislative intent, can be said to bespeak a new policy that is sufficiently broad so as to inform the common law. In my view, neither the Evidence Act standing alone, nor the Evidence Act and the Evidence Act 1995 (NSW) taken together, constitute a sufficiently broad expression of a policy from which analogies can be drawn for the common law". 337 It can be seen that the members of the Federal Court relied on a number of grounds, some of which are applicable only to client legal privilege and would not apply to sexual assault communications privilege. However, a ground given by all the judges was that there is only one common law in Australia and the common law in those few jurisdictions in Australia in which Evidence Acts have been passed cannot be modified by analogy with provisions of the Evidence Act, so as to produce the result that there is one common law in Evidence Act jurisdictions and a different common law in jurisdictions in which there is no Evidence Act. There is support for this ground in pronouncements by judges of the High Court. 338 In Public Service Board of NSW v Osmond (1985-6) 159 CLR 656 at 669 Gibbs CJ, with whose judgment Brennan J and Dawson J agreed, quoted what Lord Diplock had said in Warnink v Townend & Sons (Hull) Ltd (1979) AC 731 at 743:- "'Where over a period of years there can be discerned a steady trend in legislation which reflects the view of successive Parliaments as to what the public interest demands in a particular field of law, development of the common law in that part of the same field which has been left to it ought to proceed upon a parallel rather than a diverging course'". 339 The only comment made by Gibbs CJ was that Lord Diplock had not intended to say that because there has been a trend of legislation in one jurisdiction, the courts of a different and independent jurisdiction should develop the common law of that jurisdiction on a parallel course. His Honour did not say anything about what would be the situation if there had been a trend of legislation in the jurisdiction in which the court is sitting. 340 In Cotogno v Lamb (1987) 164 CLR 1 at 11-12 the Court consisting of Mason CJ, Brennan J, Deane J, Dawson J and Gaudron J said:- "Even if it were possible for a court to go beyond what a statute actually enacts and to draw from it some principle to be applied by way of analogy in fashioning the common law, it would not assist the defendant's argument in this case. Such an approach was first suggested by Pound in 1907, but it has never really gained general acceptance, at all events in that simple form. * * * An attenuated version of the same idea is, however, reflected in the view of Lord Diplock expressed in Warnink v J Townend & Sons (Hull) Ltd. " 341 In Lange v Australian Broadcasting Commission the Court consisting of all seven judges of the Court said at pp562-3:- "With the establishment of the Commonwealth of Australia, as with that of the United States of America, it became necessary to accommodate basic common law concepts and techniques to a federal system of government embodied in a written and rigid constitution. The outcome in Australia differs from that in the United States. There is but one common law in Australia which is declared by this Court as the final court of appeal. In contrast to the position in the United States, the common law as it exists throughout the Australian States and Territories is not fragmented into different systems of jurisprudence, possessing different content and subject to different authoritative interpretations. The distinction is important for the present case…" 342 It is unwise to read too much into remarks made by a judge or a member of a court in the course of oral argument. However, I note that when BT was argued in the High Court on 3 December 1998 and counsel referred to the decisions in Adsteam and Akins and the doctrine of derivative application Gleeson CJ is recorded as saying "now what do you say about the Adsteam theory, that is to say that even if it is the common law that applies, it has been modified to some extent and in some locations? and "So, your proposition is that all four judges in the courts below approached this on a wrong basis, under the authority of Adsteam?" and McHugh J is recorded as saying "I cannot understand that at all" and "the other matter that Adsteam does not deal with is that we have said, again and again, that there is only one common law in this country". 343 In Northern Territory v GPAO the High Court found it unnecessary to consider the question of the consequences of the provisions of the Commonwealth Evidence Act, if any, in relation to the common law principles which operate in the field of the production of documents on subpoena (see particularly per Gleeson CJ and Gummow J at par17). 344 The decision and reasoning in Esso substantially weaken the authority of Akins. In Akins Mason P relied on the decision in Adsteam as being a highly persuasive precedent. His Honour also relied on what he called "the gravitational pull of statutes", which seems to amount to the argument rejected in Esso. The reason given by his Honour that Div1 of Pt310 did not abrogate, but rather modified, common law rights would not be applicable to Div1B of Pt 310. I note that in Amalgamated Television Services Pty Limited v Marsden (1999) NSWCA 97 the Court of Appeal refused leave to reconsider Akins. The Court of Criminal Appeal is not strictly bound by decisions of the Court of Appeal (R v Masters (1992) 26 NSWLR 450 at 472) and especially when the Court of Criminal Appeal is constituted by five judges. 345 In my opinion, question 2 should be answered "No". Apart from what I consider to be the general unsoundness of the derivative or analogical mode of reasoning based on the Evidence Act, there are the further difficulties that there was no sexual assault communications privilege at common law and what I have described as the paradigm argument is not applicable.

[79]

346 Having regard to the answers I have given to questions 1 and 2, this question does not arise but it is nevertheless desirable to deal with it. It was submitted on behalf of the appellant that, even if the provisions of Div1B applied either directly or derivatively, s126I provides that Div1B does not prevent the adducing of evidence given with the consent of the protected confider concerned and it was further submitted that the complainant had in her statement of 20 December 1996 given her consent. It was contended that the reason given by Judge Freeman for holding that the complainant had not consented, namely that a consent under s126I "would…have to apply to the adducing of evidence, that is in court" and the letter of 20 December 1996 did not contain a consent to the adducing of evidence in court, was inconsistent with his finding that Div1B generally applied derivatively to the production of documents on subpoena. 347 It was not disputed on the hearing of the appeal that a protected confider can consent to the adducing of evidence of protected confidences. It was, however, submitted on behalf of the Health Service and the Attorney General that any consent would have to be a real and informed consent and that at least in some circumstances a fully informed consent could not be given unless the protected confider had received legal advice. Any consent, it was submitted, could be limited in its terms and would not extend to any protected confidences not falling within its terms. The onus of establishing consent would rest on the person seeking to adduce evidence of the protected confidence. I would accept all of these submissions made on behalf of the Health Service and the Attorney General. 348 In the present case, I consider that the question of consent can be disposed of on the simple basis that the letter of 20 December 1996 giving permission to the police service to approach Dr de Groot and obtain from Dr de Groot any relevant mental health information did not in its terms amount to a consent to the disclosure of protected confidences within the meaning of that expression in s126G and did not amount to a consent to persons other than Dr de Groot supplying any information or any records to anyone. Accordingly, this question should be answered "no".

[80]

Whether or not the provisions of Div1B apply either directly or derivatively to the production of documents recording protected confidences, should protected confidences and documents recording protected confidences be recognised as forming a new category of public interest immunity. 349 On this question I have had the advantage of reading in draft the judgment of the Chief Justice, the judgment of Beazley JA and the joint judgment of Abadee and Barr JJ. I agree, generally for the reasons given by the Chief Justice and Abadee and Barr JJ, that the Court should not create a new category of public interest immunity relating to confidential sexual assault communications. In reaching this conclusion, I have taken particularly into account the following matters. 350 This Court should have regard to the proper role of courts in the development of the law, as discussed in the authorities referred to in the judgments of the other members of the Court and to the fact that this Court is an intermediate, and not an ultimate, court of appeal. There is only one common law in Australia and it is not legitimate to rely on the New South Wales Evidence Act as a basis for changing the common law by creating a new category of public interest immunity. Any new category of public interest immunity consisting of confidential sexual assault communications would operate especially, if not exclusively, in criminal proceedings so as to diminish the rights of criminal accused. 351 Beazley JA has concluded that the reporting of sexual assaults bears an analogy with communications by police informers but the analogy does not appear to me to be a close one. 352 The legislature has only recently enacted Div1B of Pt310 of the Evidence Act and used language which all members of the Court agree defines the field of operation of Div1B as not including ancillary processes. It can confidently be anticipated that, if there is dissatisfaction with this Court's decision, further legislation will be enacted. 353 If a new category of public interest immunity is to be created, the question arises how it should be defined. Is the category to be co-extensive with the statutory privilege created by Div1B, with its special definitions of the terms used in Div1B? If the new category of public interest immunity is not so co-extensive, anomalies will arise. 354 A recognition of a new category of public interest immunity would create the anomaly, that the adducing of evidence of protected confidences would be governed by Div1B of Pt310, whereas ancillary processes concerning the same confidences would be governed by s130 of the Evidence Act or the common law, which require a balancing process different from that required by s126H(3). A further anomaly would be that under s126I a protected confider can consent to the adducing of evidence of a protected confidence, whereas (presumably) a confider could not consent to the disclosure of the confidence in an ancillary process, in contravention of public interest immunity. 355 In my opinion, question 4 should be answered "no".

[83]

S.126H "(1) Evidence is not to be adduced or a document produced in a proceeding if it would disclose: (a) a protected confidence, or (b) the contents of a document recording a protected confidence, unless the court gives leave to adduce or require production of the evidence or document. (2) Evidence of a protected confidence or the contents of a document recording a protected confidence is not to be adduced or produced if the party adducing the evidence or requiring production has not given reasonable notice in writing of the party's intention to adduce the evidence or require production of the document to: (a) each other party, and (b) if the protected confider is not a party, the protected confider, and (c) if the counsellor is not a party, the counsellor. (3) The court must not give leave to adduce or require production of evidence of a protected confidence or a document recording a protected confidence unless the court is satisfied that: (a) the evidence or document will, either by itself or having regard to other evidence or another document adduced or to be adduced or required to be produced by the party seeking to adduce the evidence or requiring production of a document , have substantial probative value, and (b) other evidence of the protected confidence or another document recording the protected confidence is not available, and (c) the public interest in preserving the confidentiality of protected confidences and protecting the protected confider from harm is substantially outweighed by the public interest in admitting into evidence or producing information or a document of substantial probative value. (4) Without limiting the matters that the court may take into account for the purposes of subsection (3)(c), the court must take into account the likelihood, and the nature or extent, of harm that would be caused to the protected confider if evidence of the protected confidence or document is adduced or produced . (5) The court must state its reasons for giving or refusing to give leave under this section. (6) A protected confider or counsellor who is not a party to proceedings may, with the leave of the court, appear in the proceedings."

R v Young

At a glance

Court

Decision date

Before

Source

Judgment (88 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (66)

Cited By (50)