SOOD v REGINA [2006] NSWCCA 252 | Case summary

(1) unlawfully administering a drug to LT with intent to procure a miscarriage; (2) unlawfully causing a drug to be taken by LT with intent to procure a miscarriage; and (3) the manslaughter of PP. 3 The drug referred to in the charges has been described as a "Prostaglandin" type drug. 4 Central to the allegations against the applicant is a claim made by LT that the applicant agreed to perform the termination of LT's pregnancy, and then inserted a tablet into LT's vagina and gave her some tablets to take orally. 5 The Crown contends that these tablets were of the Prostaglandin type of drugs, an effect of which is to soften the cervix and, potentially, to cause the woman to go into labour. The Crown contends that, after the administration of these drugs, LT was allowed to go home where, at about 4 am the following day, she gave birth to a live baby, PP, who died shortly afterwards at Westmead Hospital. 6 The applicant is a doctor, and is insured for professional negligence with Australasian Medical Insurance Limited. The subpoena which is challenged in these proceedings, was issued at the request of the Crown to Australasian Medical Insurance and seeks provision of the following documents: "... all statements, affidavits, complaints, medical reports, correspondence and settlement agreements or orders concerning any medical treatment or consultations with Dr Suman Sood by [KF], including any documents concerning a miscarriage or live birth." 7 I understand that the documents sought in the subpoena have been, following the orders made by Barr J, produced to the Court. However, inspection of the documents has not been allowed. Any "legal advices or any other documents that are properly subject to a claim of legal professional privilege" were explicitly excluded from the schedule to the subpoena. 8 By notice of motion dated 13 June 2006, the Australasian Medical Insurance Limited sought to have the subpoena set aside. The basis for that motion was that the subpoena constitutes a fishing expedition and amounts to an abuse of process. At the hearing of the matter counsel appeared on behalf of Australasian Medical Insurance Limited and also appeared for the applicant. Counsel appears today for the applicant and has indicated that although Australasian Medical Insurance Limited does not join the application, it is sympathetic to it. Barr J heard the application on 14 June 2006 when it was dismissed. 9 The charges arise, as I have indicated, from the alleged provision of a purported termination service to LT by the applicant at a time when it is alleged that LT was between 21 and 24 weeks pregnant. As I have indicated, the allegation is that the drugs were administered to her. She was then sent home, after which she went into labour and ultimately presented at the hospital. 10 The Crown accepts that the applicant is entitled to bring the application, but further submits that Barr J made no error of principle apt to cause irregularity or injustice: see R v Hoy (unreported, CCA, 18 July 1994); R v Stig (unreported, CCA, 17 October 1996). For this reason, the Crown opposes the grant of leave. 11 Before Barr J the applicant submitted that the respondent could not demonstrate a legitimate forensic purpose in the subpoena. That submission is repeated in this Court. 12 The Crown submits that a legitimate purpose in the issue of the subpoena is found in the fact that in 1998 the applicant treated KF, who subsequently miscarried on the way to hospital the next day, and so the Crown understands the facts are almost the same as those relating to LT. 13 Before Barr J, the Crown Prosecutor relied on four legitimate forensic purposes. They were:

(iv) the production of the documents was likely to provide evidence of admission by conduct by the applicant that she was negligent on a previous occasion, and that, therefore, she was likely to have been relevantly negligent on the instant occasion. 14 No complaint is made that Barr J either misunderstood the relevant law or failed to apply it. His Honour identified the need to determine whether it was "on the cards" that the material produced will assist the prosecution case. His Honour found that the relevant test was satisfied on at least two bases; firstly, character evidence and, secondly, the allegation of criminal negligence. 15 Before this Court the applicant submitted that the subpoenaed material is unlikely to provide evidence of the applicant's "bad character" or support an allegation of criminal negligence. The former challenge is based upon the proposition that so little is known of the circumstances of the prior event that it could not be said that evidence of "bad character" is on the cards. The essence of the second challenge is that it is unlikely that even if relevant material is found, it would be admissible in the present proceedings. 16 To my mind, the applicant has not demonstrated any error by Barr J which would entitle the applicant to a grant of leave. Although it is correct that the full facts of the previous events are not known, the essence of the allegations are such that the subpoena can, in my view, be justified. Whether the material revealed from the Australasian Medical Insurance file will justify its admission at the trial, as going to the applicant's character, assuming that is in issue, will depend upon the documents which are produced. However, from the material presently available, his Honour was correct, in my view, to conclude that it was on the cards that the file would contain material of assistance to the Crown case. 17 I am also satisfied that the file may contain material which demonstrates from the history of the prior events that the applicant knew of the risks involved in administering Prostaglandin drugs, and the precautions which should be taken in relation to the health of the patient. Whether the material will be admissible at the trial is not a matter for this Court. 18 The applicant says it is highly unlikely to provide tendency or coincidence evidence, or contain admissions of negligence. I am not persuaded that this is so. The insurance file of an event similar to the circumstances of the current charge may well contain relevant admissions, having regard to the obligations arising from the relationship of the applicant with her insurer. 19 For these reasons, in my opinion, the application for leave to appeal should be refused. 20 There remains the question of orders, but I will come back to that later. 21 ADAMS J: I agree with the learned presiding judge, and I wish to add some remarks of my own. The conventional starting point for discussion of the principles governing subpoenas for the production of documents is the judgment of the Chief Justice in Alister v R [1983-1984] 154 CLR 404. It is from that judgment that Australian jurisprudence has come to use in this area the phrase, "on the cards". 22 This is an area of law which has been bedevilled by metaphor - mixed at that, when one adds "fishing expedition" and the concomitants that phrase has spawned. It seems to me that the relevant test, in plain language, is whether there is a reasonable chance that some relevant material might be disclosed that is relevant to a potential issue in the trial. Of course, the issue and the forensic purpose for which the material is sought must be clearly identified. 23 As gauche as it is to refer to one's own judgments, I discussed these matters in Roads and Traffic Authority of New South Wales v Connolly (2003) 57 NSWLR 310 at 10. I mention it here only to save me the trouble of repeating what I then said. 24 In this case the Crown has identified a legitimate forensic purpose, indeed a number of them. It is, of course, impossible, without inspection of the documents, to see whether they might serve any one or more of those purposes. Nevertheless, the documents specified in the subpoena seem to me to fall into a class of documents which might reasonably be thought to have material relevant to those identified forensic purposes. 25 Subject to issues of privacy, confidentiality, and oppression and privilege, it seems to me that the Crown should be entitled to the production and access to those documents. It is not suggested that either oppression or privilege apply or might apply in this case. Nevertheless, it is obvious from the mere description of the documents that questions of privacy or confidentiality do arise. 26 It was most unfortunate that the person who was the subject of the material sought to be subpoenaed, whose privacy was thus to be invaded, was not informed of the subpoena and given a timely opportunity to object, either to the production of the documents or to access being given to particular persons or to have a say in the potential use to which such documents might be put. This is, as I see it, a fundamental right. A person affected or potentially adversely affected by an order of a court should have the opportunity to be heard in relation to that order and unless the circumstances are exceptional. The circumstances here are not exceptional. 27 Having regard to the access limitations which this Court has in mind, as a practical matter this issue is not such as should prevent production of the documents, and the limited access which is proposed. Matters of the kind with which the document to be produced are concerned are obviously sensitive and the interest of the person involved should not have been overlooked. 28 Where an issue of privacy or confidentiality is present, there are a number of procedures available for the Court to deal with it. The usual way of doing so, where an objection is taken by the person whose privacy is affected to either production or access of the documents, is for the Court to inspect the documents to ascertain, firstly, whether or not the privacy or the confidentiality of the claim is legitimate and, secondly, whether in light of those legitimate claims some conditions should apply to disclosure or use of the material. For reasons that will be apparent from the transcript, it has not been necessary, in this case, for the Court to inspect the documents. 29 In a case involving, for example, State security or an informant's identity, access to the material might be refused altogether. However, those are grounds already accepted as justifying, in some cases, extreme orders of that kind. In the normal course, mere personal embarrassment could not stand in the way of the production of documents reasonably necessary for the conduct at least of a criminal trial, where public policy requires the disclosure of all relevant material. 30 Nevertheless, considerations of privacy and confidentiality may well lead to adjustments of access orders and limitations and qualifications on the use of the material. I do not know whether the person involved here is concerned about her privacy, or would be concerned to seek some qualification in the use of the material. What is clear is that she should have been, and must now be, given the opportunity to be heard at least before the documentary material is at least used. 31 It might be that when inspection occurs, further access than is presently envisaged occurs will be desirable, but that will be, in my mind, a matter properly for the trial judge to determine. 32 Subject to those remarks, I agree with the Chief Judge at Common law. 33 LATHAM J: I agree with the Chief Judge at Common Law. 34 McCLELLAN CJ at CL: It follows that leave to appeal is refused. **********

SOOD v REGINA

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