Rohan v R

The subpoenas

1. The applicant sought leave to issue subpoenas to the Mallee Sexual Assault and Domestic Violence Unit, the Mildura Sexual Offence and Child Abuse Investigation Team, Victims of Crime, Victoria and the Child and Youth Mental Health Service at Mildura Base Hospital.
2. The notice of motion by which leave to issue the subpoenas was sought was supported by an affidavit by the applicant's solicitor which included that "it is expected that the material sought to be subpoenaed contains protected confidences".

Statutory provisions

1. Provisions in relation to "Sexual assault communications privilege" are contained within Div 2 of Pt 5 Ch 6 of the Criminal Procedure Act ("Pt 5 Div 2").
2. A "protected confidence" is defined as a "counselling communication that is made by, to or about a victim or alleged victim of a sexual assault offence": s 296(1). A "counselling communication" is defined in s 296(4).
3. The alleged victim is referred to as the "principal protected confider". He or she is also referred to as the "protected confider", a term also applying to other persons who made a protected confidence: s 295(1). Often in these cases where the alleged victim appears, either as an applicant or respondent, they are referred to in the case title by a pseudonym "PPC". However, for consistency I have elected to refer to "the complainant" and to maintain a case title that refers to the overall case in which the issue arises (i.e. between the applicant and the Crown).
4. Section 297 provides a complete prohibition upon compelling the production of a document recording a protected confidence in preliminary criminal proceedings (committal proceedings or proceedings relating to bail).
5. Section 298 provides: "298 Protected confidences - criminal proceedings (1) Except with the leave of the court, a person cannot seek to compel (whether by subpoena or any other procedure) any other person to produce a document recording a protected confidence in, or in connection with, any criminal proceedings. (2) Except with the leave of the court, a document recording a protected confidence cannot be produced in, or in connection with, any criminal proceedings. (3) Except with the leave of the court, evidence cannot be adduced in any criminal proceedings if it would disclose a protected confidence or the contents of a document recording a protected confidence."
6. In KS v Veitch (No 2) (2012) 84 NSWLR 172; [2012] NSWCCA 266 at [23], Basten JA noted that the tripartite structure of this provision operates to prohibit the issue of a subpoena, the production of a document otherwise than pursuant to a subpoena issued with leave, and the adducing of evidence recording or revealing a protected confidence, except with the grant of leave. His Honour said in relation to sub-s (1): "Although the prohibition in sub-s (1) bites at an early stage, its primary purpose is to prevent any person other than the persons who are party to the counselling communication having access to the contents of the document".
7. Section 299B makes provision for a court to consider documents or evidence in question in the event "a question arises under this Division relating to a document or evidence". (This will be discussed in more detail below in the context of two of the proposed grounds of appeal.)
8. Section 299C provides for notice to be given to a protected confider of any application for leave under Pt 5 Div 2 and, as previously mentioned, the protected confider has standing to appear.
9. Section 299D is the provision governing the granting of leave under Pt 5 Div 2 (that is, the leave referred to in s 298): "299D Determining whether to grant leave (1) The court cannot grant an application for leave under this Division unless the court is satisfied that: (a) the document or evidence will, either by itself or having regard to other documents or evidence produced or adduced or to be produced or adduced by the party seeking to produce or adduce the document or evidence, have substantial probative value, and (b) other documents or evidence concerning the matters to which the protected confidence relates are not available, and (c) the public interest in preserving the confidentiality of protected confidences and protecting the principal protected confider from harm is substantially outweighed by the public interest in admitting into evidence information or the contents of a document of substantial probative value. (2) Without limiting the matters that the court may take into account for the purposes of determining the public interest in preserving the confidentiality of protected confidences and protecting the principal protected confider from harm, the court must take into account the following: (a) the need to encourage victims of sexual offences to seek counselling, (b) that the effectiveness of counselling is likely to be dependent on the maintenance of the confidentiality of the counselling relationship, (c) the public interest in ensuring that victims of sexual offences receive effective counselling, (d) that the disclosure of the protected confidence is likely to damage or undermine the relationship between the counsellor and the counselled person, (e) whether disclosure of the protected confidence is sought on the basis of a discriminatory belief or bias, (f) that the adducing of the evidence is likely to infringe a reasonable expectation of privacy. (3) For the purposes of determining an application for leave under this Division, the court may permit a confidential statement to be made to it by or on behalf of the principal protected confider by affidavit specifying the harm the confider is likely to suffer if the application for leave is granted. (4) A court must not disclose or make available to a party (other than the principal protected confider) any confidential statement made to the court under this section by or on behalf of the principal protected confider. (5) The court must state its reasons for granting or refusing to grant an application for leave under this Division. (6) If there is a jury, the court is to hear and determine any application for leave under this Division in the absence of the jury."
10. In KS v Veitch (No 2) at [32], Basten JA contrasted s 299D with the test of "legitimate forensic purpose" for parties seeking access to documents produced under subpoena. He noted in relation to s 299D(1): "… [T]he first limb, requiring that the court be satisfied that the document or evidence 'have substantial probative value', before allowing the accused access to it, will constitute a significant reduction in the material which might be made available to the accused under the general law …"
11. In relation to the second limb in s 299D(1)(b), Basten JA observed (at [33]) that it was intended to prevent access to counselling communications where relevant material was available from another source. He gave the example in that case of a complainant's statements to police.
12. In relation to the third limb in s 299D(1)(c), he observed (at [34]): "The third requirement imposes an additional and significant constraint. It requires that two competing public interests be considered, with access being conditional upon the public interest in protection of confidences being 'substantially outweighed' by the interest in admitting the material into evidence. Significantly, the former public interest has two limbs: the first addresses the public interest in maintaining protected confidences generally, while the second relates to possible harm to the particular confider. The purpose of protecting such confidences generally is to encourage victims of sexual assault to seek professional assistance to deal with the resultant trauma. That public purpose will be undermined if confidentiality is too readily held to be overridden by other public interests, in circumstances where the court may be satisfied that the particular confider will not suffer significant harm. On the other hand, an assessment that the information has substantial probative value, in the usual case no doubt by casting doubt on the veracity or reliability of the complainant, will militate in favour of disclosure where it could give rise to a doubt as to the guilt of the accused."

Submissions to the primary judge

1. The general thrust of the submissions by counsel for the applicant was that it was reasonable to infer that the complainant must have been asked, or at least given the opportunity to speak, about whether she had been sexually abused by her uncle. By way of example, this was said to follow from the fact that the complainant was sent for counselling following her sister being spoken to in relation to allegations of sexual abuse by the applicant. Counsel accepted that there was no evidence that any disclosures were made but indicated, in effect, that this was what was sought to be clarified.
2. It was submitted that the judge could exercise the power in s 299B(4) to require the documents to be produced to the District Court in order for her Honour to determine the question whether to grant leave for the issue of the subpoenas.
3. Counsel also submitted that a relevant matter to take into account was the fact that the proceedings were to be determined by way of special hearing involving an accused whose ability to participate in the proceedings was limited by reason of the fact that he suffered from a "significant cognitive deficit". This had the effect that counsel's instructions comprised a "blanket denial" of the alleged offending that was said to have occurred quite some time ago; everything was in issue.
4. The judge indicated, and counsel accepted, that anything said by the complainant to investigating police (for example, to the Sexual Offences and Child Abuse Team) would be the subject of the Crown's overriding duty of disclosure.
5. Counsel disputed a suggestion by the judge that what was involved was a "fishing expedition". He gave the example that there would be substantial probative value if the complainant had given a negative answer in response to a question as to whether anyone had hurt her; submitting that it would be "very relevant as to whether or not the accused hurt her".

The judgment

1. The judge referred generally to the concept of sexual assault communications privilege and the protections in Pt 5 Div 2. She said there was no issue that the subpoenas sought the production of documents that comprised counselling communications that were caught by the provisions. She was satisfied that the documents sought comprised protected confidences as defined in s 296.
2. Her Honour referred to s 299B, indicating her view that one of its purposes was to allow a court to examine a document in order to determine if it contained a protected confidence.
3. Her Honour then referred to s 299D and its requirement in sub-s (1) that three matters be established before a court could grant an application for leave under Pt 5 Div 2. On the issue of whether the documents sought would have "substantial probative value" (s 299D(1)(a)), her Honour had regard to "the issues in the trial", namely, whether the offences occurred at all. She alluded to what counsel had said about "the difficulties that his client has" and the fact that the allegations are historical in nature as they concerned events in 2008 or 2009. She referred to the fact that the counselling occurred several years after the offences allegedly occurred and there having been "visits to the police which were not fruitful".
4. As to the meaning of "substantial probative value", her Honour referred to R v Lockyer (1996) 89 A Crim R 457 where Hunt CJ at CL defined the term "significant probative value" in s 97 of the Evidence Act 1995 (NSW). Her Honour continued: "The phrase 'substantial probative value' requires a higher standard of relevance than significant probative value, which itself connotes something more than mere relevance."
5. The essential aspects of her Honour's reasoning then followed: "In this case there is no evidence that the complainant has provided an inconsistent complaint. In this case there is no evidence other than that the complainant provided a complaint, for the first time in written form. I am told by Madam Crown that her statement provides an explanation for the lack of other [complaints]. There certainly is evidence that she was taken to the police station on an occasion prior to that and made no relevant complaints. Now, apart from the fact, as I referred to at the beginning, that it may well be that some police statements or details have not been disclosed (and that is a Crown disclosure issue), there is no evidence before the court that other disclosures were made. I think I have dealt with the issue that section 299B is not relevant to the current proceeding. The correct way of dealing with this matter is for the court to consider the application for leave under s 299D. I am not satisfied under any of the grounds of subsection 1 of 299D, let alone all of them. I am not satisfied either by a document or evidence of counselling that occurred, apparently, before any disclosure was made is likely to have substantive probative value. I am not satisfied that counselling that occurred in circumstances where the complainant was apparently being counselled in relation to self-harm is likely to have substantial probative value. I am not satisfied that all of these documents together would produce substantial probative value. And I am certainly not satisfied that the public interest in preserving the confidentiality is outweighed by those considerations. I do not propose to grant leave, but I am sure everybody has taken note of what I think the Crown needs to disclose."

The application in this Court

1. The application in this Court was for leave to appeal based upon eight grounds: 1 Her Honour erred in finding and giving no reasons that section 299B had no application to the proceedings. 2 Her Honour erred in failing to consider her powers under s 299B(4) in deciding whether to grant leave under s 298(2) [sic - s 298(1)] to issue the subpoenas the subject of the Notice of Motion filed and dated 4 April 2018. 3 Her Honour erred by taking into account an irrelevant factor, namely, that the subpoenas were a "fishing" exercise. 4 Her Honour erred in describing the subpoenas as a "fishing" exercise. 5 Her Honour failed to take into account that in respect of the subpoenas named in paragraphs 2, 3 and 4 of the notice of motion counsel for the Crown accepted that there was a legitimate forensic purpose for the issue of the subpoenas. 6 Her Honour erred in finding under s 299D(1)(c) that the applicant had failed to establish that preserving confidentiality was substantially outweighed by admitting into evidence the protected confidences as the applicant was not seeking to admit evidence of the protected confidences but to obtain leave to issue the subpoenas. 7 Her Honour erred in not giving reasons on the issue of whether the appellant had shown a legitimate forensic purpose for the issue of the subpoenas. 8 Her Honour erred in finding that the documents for which leave was sought did not have substantial probative value for the purposes of s 299D(1)(a).

Grounds 1 and 2 - failing to consider the application of the provisions of s 299B

1. These grounds may be considered together because they concern a single aspect of the judgment.
2. At the hearing in the District Court, counsel for the applicant urged that her Honour should exercise the power in s 299B(4) to compel the production of the documents to the court in order to enable her to inspect them pursuant to s 299B(1). It was contended that this would enable her to determine the question whether leave to issue the subpoenas should be granted.
3. In her judgment, her Honour indicated that it was clear that the documents sought by the subpoenas incorporated "protected confidences". She then said the following about the relevance of s 299B: "I might say in passing that one of the reasons for s 299B of the Act, perhaps in addition to what Mr Scragg has submitted to me, is to determine if there is a protected confidence. One of the reasons that 299B, I think, first became a part of this Act was for a court to determine independently whether, if there was a doubt as to whether some sort of note was a counselling note or going to be a protected confidence or something else, then the court could make that determination before proceeding to consider whether leave was to be issued under s 299D."
4. Later in the judgment, and included in that set out above (at [38]), the judge held that s 299B was irrelevant.
5. The applicant submitted in this Court that a question arose under Pt 5 Div 2 relating to the documents the subject of the motion and her Honour had the power to order that they be produced to the court to facilitate her consideration of the leave that was sought.
6. It was submitted that there was error in her Honour not considering s 299B and there was error in not giving reasons for not facilitating consideration of the documents sought under the subpoenas by examining the documents.
7. The complainant contended in written submissions that s 299B is enlivened if a question arises as to whether a document or evidence contains a protected confidence. There was no issue about that in the present matter and so the primary judge was correct to observe that s 299B had no application.
8. It was also contended in the complainant's written submissions that the legislation expressly contemplates that the determination of leave to issue a subpoena under s 298(1) will occur prior to the issue of a subpoena and in the absence of the relevant documents. For that reason, the issue of inspecting the documents and her Honour's powers under s 299B(4) did not arise.

Consideration

1. Section 299B is in the following terms: "299B Determining if there is a protected confidence (1) If a question arises under this Division relating to a document or evidence, a court may consider the document or evidence. (2) If there is a jury, the document or evidence is to be considered in the absence of the jury. (3) A court must not make available or disclose to a party (other than a protected confider) any document or evidence to which this section applies (or the contents of any such document) unless: (a) the court determines that the document does not record a protected confidence or that the evidence would not disclose a protected confidence, or (b) a party has been given leave under this Division in relation to the document or evidence and making available or disclosing the document or evidence is consistent with that leave. (4) A court may make any orders it thinks fit to facilitate its consideration of a document or evidence under this section. (5) This section has effect despite sections 297 and 298."
2. The heading to the section is misleading. It is not part of the Act: s 35 of the Interpretation Act 1987 (NSW).
3. Nothing in the terms of the provision confines its application to "determining if there is a protected confidence". It applies, "If a question arises under this Division relating to a document or evidence". It may be the case that a question arises as to whether there is a protected confidence. But other questions might also arise under the Division relating to a document or evidence, including, for example, whether under s 299D(1)(a) there is "substantial probative value".
4. In KS v Veitch (No 2), a judge had refused to set aside a subpoena on the application of a protected confider and had allowed an accused to inspect certain of the documents that had been produced. The subpoena had been issued without leave first having been granted pursuant to s 298(1). The protected confider sought leave to appeal to this Court pursuant to s 5F(3AA) of the Criminal Appeal Act.
5. Basten JA set out the terms of s 299B in full. He then explained their reach: "[27] The procedural steps set out in s 299B become necessary in circumstances where the court is required to consider the criteria identified in s 299D, even for the purpose of considering a grant of leave to issue a subpoena. That problem did not arise prior to amendments made in 2010. In an earlier version, s 298 relevantly provided: "298 Evidence of sexual assault communications may be required to be produced in, or in connection with, criminal proceedings, or adduced, with leave (1) A person who objects to production of a document recording a protected confidence on the ground that it is privileged under this Division cannot be required (whether by subpoena or any other procedure) to produce the document for inspection by a party in, or in connection with, any criminal proceedings unless: (a) the document is first produced for inspection by the court for the purposes of ruling on the objection, and (b) the court is satisfied (whether on inspection of the document or at some later stage in the proceedings) that: (i) the contents of the document will ... have substantial probative value ...." [28] Section 299B reflects the same procedural purpose, namely that the court have access to the document before deciding whether it should be made available to a party and that it should have the relevant powers to "facilitate its consideration of" the document: s 299B(4). The potential inconsistency between that provision and s 298(1) (in its current form) was addressed by the inclusion of s 299B(5), introduced by the Courts and Crimes Legislation Amendment Act 2012, Sch 1.1 [11], which commenced on 21 March 2012. [29] Although in terms s 298(1) prohibits a party, without leave of the court, from seeking the issue of a subpoena with respect to documents containing protected confidences, the facts that the documents were produced only to the Court and that the Court could itself have taken steps to ensure that it had access to the documents before ruling on an application for leave, suggest that the issue of the subpoena without leave, although irregular, achieved a purpose which could have been achieved by other means. In the circumstances, it was open to the trial Court to disregard the irregularity and consider the documents in determining whether the respondent should have access to them.
6. Beech-Jones J agreed with Basten JA (as did Harrison J) but he made "some additional comments which relate to the practicalities of the operation of Pt 5 Div 2": "[84] Much of the argument concerning Part 5 Division 2 centred upon the apparent difficulties in the application of s 299D at the point of seeking leave to issue a subpoena or other compulsive process under s 298(1). In particular it was queried as to how the Court could be satisfied that the document or evidence sought to be produced by the subpoena has substantial probative value and was otherwise not available to the accused even before the subpoena was issued? This is particularly the case so it was said because there was no means by which the Court could inspect the documents before the subpoena was issued to enable it to be appropriately satisfied that the criteria in s 299D(1) were established. [85] Two points should be noted in relation to this. The first is adverted to by Basten JA at [28]. The Court is empowered by s 299B(4) to make an order requiring the production of the documents to itself. This would include an order directed to third parties. In so ordering the Court is not bound by s 297 and 298 (s 299B(5)). There are obvious logistical issues raised by the making of such an order including how it is to be served, who by and who bears the cost of compliance. Senior Counsel for the Attorney General appeared to accept that the making of some regulations to facilitate such a process was warranted. In the absence of that occurring then it seems to me that the Court could require the Crown to take out and effect service of an order requiring the production of documents to itself for this purpose. [86] The second point is that the apparently high threshold presented by the criteria in s 299D may not be as difficult to overcome as first appears if the relevant application was supported by evidence identifying the accused's defence to the relevant allegation, what the accused expects will be obtained from the material sought to be produced or inspected and what other documents or evidence are or are not available relating to those issues and the material sought. That is not to say that those matters must be deposed to before such an application will be granted but, as a practical matter, if they were an application for leave would appear to have a greater chance of success. Of course the decision to disclose those matters cannot be forced upon an accused and the decision to do so would no doubt represent a difficult forensic choice. However, all forms of litigation involve difficult forensic choices and the effect of these provisions may only be to require that they be made earlier if documents are sought in advance of the trial."
7. It is clear from this that s 299B provides a discretion for a judge determining a question arising under Pt 5 Div 2 to consider the document or evidence in question, and for the judge to make orders to facilitate that process. The Court in KS v Veitch (No 2) considered that an order requiring the production of documents was one of the orders that could be made for that purpose.
8. There is something odd about a notion that a court may compel a person or organisation to produce documents in order that the court may determine a question as to whether the person or organisation may be compelled to produce the documents. I consider it very doubtful that Parliament had such strained logic in mind in enacting s 299B. Certainly nothing to this effect was suggested by the then Attorney General in his second reading speech in respect of the Bill that became the Courts and Crimes Legislation Further Amendment Act 2010 (NSW) which made amendments to Pt 5 Div 2, including the insertion of s 299B: New South Wales Legislative Council, Parliamentary Debates (Hansard), 24 November 2010. In fact, the Attorney General spoke only in terms of s 299B having the purpose described in its heading: "New section 299B describes the process the court may undertake if a question arises under this division relating to whether a document or evidence contains a protected confidence."
9. The terms of s 299B can be readily applied when documents or evidence are already available to a court and consideration is required as to whether leave should be granted pursuant to s 298(2) or (3). I am doubtful that it was ever intended to apply on a question of leave to issue a subpoena under s 298(1) at which stage documents or evidence are not available. Nevertheless, this Court has said so in KS v Veitch (No 2) and it has not been doubted in any subsequent judgment to which we were referred. No submission was made that what was said in KS v Veitch (No 2) should not be followed. I proceeded in my consideration of the present matter on that basis.
10. In NAR v PPC1 [2013] NSWCCA 25; 224 A Crim R 535, Adams J took s 299B even further. First, he described (at [3]) a "most unlikely case" as one in which the applicant for leave to issue a subpoena "is already aware of the contents of the documents sought to be produced and is in a position to establish the requirements of s 299D(1) without the actual production of the documents". Then, for all other cases he said (at [4]): "Speaking generally, it is obvious that the s 299D issues cannot be considered without examining the documents themselves or having sufficient information to make what might be called the statutory inquiries. The practical reality will almost invariably be that the documents have to be examined."
11. His Honour's observation did not commend itself to the other members of the Court; Hoeben CJ at CL noting that "the issue does not arise for consideration in this matter". The case was not concerned with a question of leave to issue a subpoena; documents had been produced pursuant to a subpoena that had been issued without leave. The issue was whether a trial judge was wrong in refusing the accused access to the documents, with an intermediate issue being whether the judge was wrong in not considering the documents pursuant to s 299B(1).
12. Counsel for the applicant submitted that despite the lack of agreement by the other members of the Court in NAR v PPC1, what was said by Adams J had subsequently been the subject of unanimous agreement by the members of the Court in ER v Khan [2015] NSWCCA 230; (2015) 254 A Crim R 1.
13. ER v Khan was concerned with a judge having reviewed a large volume of documents produced under subpoena and determining that a number of them did not involve any protected confidence. The protected confider sought leave to appeal against that determination. Counsel for the present applicant founded his submission upon a passage in the judgment of Hall J at [105]-[108] in which there was reference to the earlier judgment of Adams J. Counsel also pointed to the fact that Hoeben CJ at CL and Button J had both agreed with the judgment of Hall J.
14. It is true that Hall J did refer with apparent approval to the observation of Adams J in NAR v PPC1 at [4] and it is also true that the other members of the Court agreed with the judgment of Hall J. Hall J prefaced his quotation from that paragraph by saying, "In circumstances such as these, the practical difficulties that face a judge in determining the existence of a protected confidence has previously been the subject of attention and discussion in NAR v PPC1".
15. The "circumstances such as these" Hall J was referring to was the task of a judge examining a very large number of documents in order to determine whether they contained protected confidences. His Honour was not talking about, let alone endorsing, what Adams J had said about a process that should be undertaken in relation to an application for leave to issue a subpoena.
16. Accepting what was said in KS v Veitch (No 2) about the availability of a discretion of a judge to compel the production of documents in order to determine a question of leave to issue a subpoena (despite my reservations) it is clear that the primary judge erred in holding that s 299B was irrelevant. To the extent that the judge disavowed the availability of the power under s 299B(4) to order the production of the documents there was an error of principle.
17. Grounds 1 and 2 were made good. A question remained, however, as to what her Honour might or should have done if she had considered the application of s 299B. That question is considered below.

Grounds 3 and 4 - describing and taking into account the subpoenas were a "fishing" exercise

1. These grounds had no merit. While her Honour raised a suggestion during the course of submissions as to whether the applicant was embarking upon a "fishing expedition", she made no reference to it in the course of her reasons for judgment.

Ground 5 - failing to take into account the Crown accepted there was a legitimate forensic purpose

1. This ground had no merit. The Crown did not indicate any acceptance that there was a legitimate forensic purpose for the subpoenas.
2. The Crown Prosecutor made a submission that there was no legitimate forensic purpose in respect of one of the subpoenas. Nothing was said in relation to the others.
3. It is often the case that the Crown remains neutral in relation to sexual assault communications privilege issues, particularly given the standing of the protected confider to appear and the availability of legal representation from the Sexual Assault Communications Privilege Service of Legal Aid NSW. Silence by the Crown on an issue does not equate to a concession. Even if it did, it was a matter for the judge to make up her own mind.

Ground 6 - error in finding under s 299D(1)(c) that preserving confidentiality was not outweighed by admitting the protected confidences into evidence

1. This ground is concerned with a single sentence at the end of the judgment. After her Honour had stated in quite emphatic terms that she rejected the proposition that substantial probative value had been established, she said: "And I am certainly not satisfied that the public interest in preserving the confidentiality is outweighed by those considerations."
2. The applicant submitted that s 299D(1)(c) had no relevance to the application because he was not seeking to adduce evidence of the contents of documents.
3. It was also submitted that substantial probative value for the purposes of leave under s 298 has a lower threshold than when a court is considering whether to admit evidence when s 299D(1)(c) and (2) are thereby engaged.

Consideration

1. A court cannot grant an application for leave for any of the three matters listed in s 298 unless it is satisfied of each of the three matters listed in s 299D(1). In other words, s 299D(1)(c) is not confined in its application to the question in s 298(3) of leave to adduce evidence.
2. Returning again to KS v Veitch (No 2), Basten JA described s 299D(1)(c) as having the following effect: "[34] The third requirement imposes an additional and significant constraint. It requires that two competing public interests be considered, with access being conditional upon the public interest in protection of confidences being 'substantially outweighed' by the interest in admitting the material into evidence. Significantly, the former public interest has two limbs: the first addresses the public interest in maintaining protected confidences generally, while the second relates to possible harm to the particular confider. The purpose of protecting such confidences generally is to encourage victims of sexual assault to seek professional assistance to deal with the resultant trauma. That public purpose will be undermined if confidentiality is too readily held to be overridden by other public interests, in circumstances where the court may be satisfied that the particular confider will not suffer significant harm. On the other hand, an assessment that the information has substantial probative value, in the usual case no doubt by casting doubt on the veracity or reliability of the complainant, will militate in favour of disclosure where it could give rise to a doubt as to the guilt of the accused. [35] For the purpose of making the balance required by paragraph (c), it appears to be assumed that the information contained in the documents will in fact be admitted into evidence in one form or another. How that assumption would operate in particular circumstances is not a matter which can be helpfully addressed in the abstract. [36] The respondent characterised the effect of the Division as precluding access to such communications. However, that is not a fair reflection of the operation of s 299D. It should be accepted that even where the information contained in the document has substantial probative value (in the sense discussed above) and the risk of significant harm to the individual in the event of disclosure is not high, factors which favour maintaining confidentially generally may be significant. Although the balancing exercise is weighted against disclosure, that course is nevertheless permitted where the court is satisfied that the public interest in such an outcome substantially outweighs the countervailing considerations."
3. In PPC v Williams [2013] NSWCCA 286; (2013) 224 A Crim R 535 there was an application for leave to appeal by a protected confider against the decision of a trial judge allowing production of part of subpoenaed material to the legal representatives of the parties. One of the grounds of the appeal was that the judge failed to take into account the matter in s 299D(1)(c). The judge said that it only had application at the later stage when a party was seeking leave to adduce evidence under s 298(3). Gleeson JA held: "[76] It is tolerably clear, in my view, that his Honour erred in his approach to the paragraph (c) requirement of s 299D(1), because he considered that it only had application at the later stage of adducing of evidence under s 298(3) with a grant of leave. The correct position is that the paragraph (c) requirement also applies at the earlier stage of allowing access to the subpoenaed material under s 298(2). [77] The trial judge erred, in my view, because he did not undertake the balancing exercise required by the paragraph (c) requirement. This includes, but is not limited to, taking into account the s 299D(2) factors, when determining the public interest in preserving confidentiality of the protected confidence and protecting the principal protected confider from harm."
4. There was no error in her Honour making a finding under s 299D(1)(c). The legislation mandated that it was a relevant matter to consider. But in any event, this aspect of her Honour's judgment was hardly determinative given her lack of satisfaction of the principal issue debated before her, that of "substantial probative value" under s 299D(1)(a).

Ground 7 - failure to give reasons as to whether legitimate forensic purpose established

1. This and the following ground were added by leave at the hearing of the application.
2. This ground had no merit. The judge was not called upon to determine whether the issue of the subpoenas had a legitimate forensic purpose. She was called upon to decide whether leave should be granted pursuant to s 298(1) for the issue of subpoenas upon the criteria set out in s 299D(1). Legitimate forensic purpose is not one of the statutory criteria.

Ground 8 - error in finding that the documents did not have substantial probative value for the purposes of s 299D(1)(a)

1. The issue raised by this ground was determinative of the application in this Court, notwithstanding the applicant's success under Grounds 1 and 2. That is because if the primary judge was correct in finding that the documents would not have substantial probative value, there was no point in her compelling their production for her inspection.
2. Counsel for the applicant initially made submissions that implied a contention that, in the usual case, a court had no discretion under s 299B; it had to compel the production of the documents in order to make the assessment under s 299D(1). He disavowed this and submitted that it was the circumstances of this particular case that required the documents to be produced for that purpose.
3. The features of this particular case are: ● The complainant claims she was sexually abused by the applicant in 2008-2009. ● Her claim is disputed and so her credibility will be in issue. ● She underwent counselling over an aggregate period of about two years in 2011 to 2014. ● The applicant suffers from a cognitive impairment such that he is unfit to be tried. ● His defence is confined to what was described in the court below as a "blanket denial".
4. It was contended that because of the combination of these features, this was a case in which the primary judge should have accepted the proposition that it was reasonable to assume that during counselling the complainant may have said something about whether or not she was sexually abused as she claims. The judge should also have accepted that if the complainant denied, or did not volunteer, that she had been sexually abused, such a statement, or failure, would or could have substantial probative value in relation to her credibility. The judge should then have either granted leave to issue the subpoenas, or at least compelled their production for her inspection so as to enable her to decide whether there was substantial probative value.
5. During the course of the proceedings below, counsel at first contended that it was reasonable to expect that a counsellor would have asked a direct and leading question of the complainant as to whether she had been abused by the applicant. He later retreated from this by conceding that a counsellor would not question a person in the position of the complainant in this way but would ask questions in a non-leading form that would allow for her to volunteer whether she had a complaint to make against the applicant.

Consideration

1. If counselling records disclosed that the complainant had failed to avail herself of an opportunity to make a disclosure about sexual abuse by the applicant, there would hardly be any probative value given that if evidence of this was before a court at trial, or special hearing, it would invoke a warning pursuant to s 294 of the Act (to the effect that a failure to complain in such a matter is not significant).
2. The application for leave to issue the subpoenas before the primary judge was based upon the prospect that the complainant may have failed to take up an opportunity during counselling to complain about sexual abuse by the applicant. Seen in the light of the provision in s 294, that would have no "substantial probative value".
3. It must be remembered as well that the available evidence is to the effect that the complainant told a school friend in Year 7 and she wrote down a disclosure in late 2012. Otherwise, she did not tell anyone in terms of an adult or a counsellor until she indicated she was ready to do so in late 2014. In other words, there already is evidence that up until that time there was no complaint to her parents, any other adult, any counsellor or any police officer. Additional evidence of there being no complaint, or even evidence of a disavowal of having been sexually abused at a time preceding when the complainant indicated she was prepared to disclose, could not have substantial probative value.

Conclusion

1. The primary judge was correct to refuse to issue the subpoenas. For these reasons it was appropriate for this Court to grant leave but to dismiss the appeal.

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