The Queen v Lyons

1 The Director of Public Prosecutions ('the DPP') charges that Christine Ann Lyons and Ronald Lyons (together, 'the Accused') at Kangaroo Flat in Victoria:

(a) between 20 January 2016 and 22 January 2016, attempted to murder Samantha Jane Kelly contrary to s 321M of the Crimes Act 1958 and common law; and

(b) on or about 23 January 2016, murdered Samantha Jane Kelly contrary to common law.

2 With respect to the murder charges, the DPP alleges that each of the accused was involved in the murder of Samantha Kelly by Peter Arthur ('Arthur') and as a consequence 'is taken to have committed the offence' pursuant to s 324(1) of the Crimes Act 1958.

Both Accused along with Arthur entered into an agreement, arrangement or understanding to kill Samantha Kelly. Their motive was to enable the trio, and in particular Christine, to whom the two men were devoted, to assume parenting of Samantha's children.

Pursuant to the agreement they discussed and planned how to carry out the murder. They then took a number of steps to carry out those plans. They attempted to kill her on or about 20-22 January, and they finally succeeded and killed Samantha, in the early hours of 23 January 2016.

4 By an application dated 23 February 2018, Ronald Lyons ('the Applicant') sought leave to issue a subpoena to the Justice Health Unit of the Department of Justice and Regulation, pursuant to Division 2A of the Evidence (Miscellaneous Provisions) Act 1958 ('the Act') for the production of the following protected documents ('the subpoenaed material'):

A full copy of Mr Peter Arthur (DOB: 21 September 1971) medical and psychological records of the Justice Health file including but not limited to any assessment reports, attendance records, file notes, records, treatment plans from 1 February 2016 to present. A full copy of any notes or records in relation to assessments, attendance records or treatment of Mr Peter Arthur (DOB: 21 September 1971) by staff at Forensicare including doctors, psychologists and any nurses.

(a) whether the subpoenaed material falls within the meaning of a 'confidential communication' under s 32B of the Act, and

(b) whether leave ought be granted for the production of the protected evidence, having regard to the restrictions on granting leave imposed by s 32D of the Act.

6 Written submissions were provided by the DPP on 9 March 2018, and oral submissions made by counsel for the DPP and counsel for Ronald Lyons at a hearing on 13 March 2018. These submissions assumed that Division 2A of the Act was applicable and were directed only to whether leave should be granted. I will summarise those submissions below.

7 On 19 March 2018, I granted leave, pursuant to s 32C(6) of the Act, for the issuing of the subpoena to Justice Health in the terms articulated.

8 On 5 April 2018, Justice Health produced the subpoenaed material to the Court, together with a covering letter noting Justice Health's objection to the inspection of the material, other than with leave of the Court, and stating that in the event leave is granted, the material should be released in a redacted form. Justice Health further stated that they were not aware as to whether Arthur had been advised of the subpoena.

9 At a hearing on 26 April 2018, I allowed the production of the material to the parties, but in a more limited form than that provided by Justice Health, redacting any reference to sexual assault made by Arthur. I also invited the parties to provide written submissions as to the applicability of s 32C of the Act.

10 On 1 May 2018, the DPP advised that they no longer contended that s 32C was applicable; and withdrew any objection to the inspection of the subpoenaed material. By email to the Court, the DPP stated that:

The prosecution have further considered their position on whether s32C and the associated provisions apply to the material sought under the subpoena. Bearing in mind the matters raised by his Honour during submissions on this issue, and also taking into account that the Guiding Principles set out in s32AB appear to limit the application of that Division to trials in respect to charges for sexual offences, the prosecution no longer submit that s32C limits the material that may be released. That being so, Notice has not been given to Mr Arthur. As noted previously, the prosecution do not object to the release of the material.

11 I have inspected the material provided by Justice Health pursuant to s 32C(6) of the Act, and consider it is appropriate to accept the DPP's concession because my preliminary views are that s 32C is not applicable and that, even if it were applicable, leave ought be granted and the subpoenaed material produced to the parties in the redacted form provided by Justice Health. I emphasise that these are only preliminary views and I have not had the advantage of submissions from the parties on the applicability of s 32C or submissions from Arthur with respect to whether, if applicable, leave should be granted under s 32D. However, for the purpose of explaining the reason I have considered it appropriate to accept the DPP's concession and permit inspection of the subpoenaed material, I set out my preliminary views as follows.

12 The summary of the prosecution opening is set out in [8]-[33] of R v Lyons & Lyons (No 2).[1]

13 It sets out the various versions of events as given by Arthur since his arrest on 11 February 2016, which I briefly summarise as follows:[2]

(a) On 11 February 2016, Arthur initially stated in his first police interview that Christine Lyons had told him that the deceased had left in the middle of the night. However, after being played a portion of Christine Lyons' interview in which she said that Arthur had killed the deceased, he said that he had gone to the unit, the deceased had lashed out at him and he grabbed something and hit the deceased over the head - thereby killing her. Later he explained that the deceased had swung a hammer at him, which he had taken off her and hit her in the head.

(b) On 12 September 2016, Arthur was again interviewed, at the request of his legal representatives, and stated that:

(i) Christine and Ronald Lyons had discussions with Shiralee Lyons about killing the deceased and, over a number of days, attempted to kill her by giving her increasing dosages of tablets.

(ii) Before he went out to the unit, Ronald and Christine Lyons had said that 'sooner or later [the deceased] had to be killed'.

(iii) He had gone to the unit to get a DVD and killed her in response to a weak physical attack.

(c) On 13 January 2017, he gave evidence at the committal hearing of Christine and Ronald Lyons at which Arthur's statement of 19 September 2016 (being the statement signed after the interview on 12 September 2016) was tendered and he gave answers in cross-examination substantially consistent with that version.

(d) At the plea hearing of Arthur on 3 April 2017, Arthur gave evidence that on the night of the murder, Ronald Lyons had taken Arthur to the unit where he had 'picked up a hammer to show me what to use'. His evidence was that they had gone back to the house where Ronald Lyons told Christine Lyons that they were going to use a hammer; and Christine had said 'yes, go for it'. Arthur then drank four Jack Daniels cans before Christine Lyons told him that it was time to go and kill the deceased; and Arthur got the hammer and killed the deceased.

14 Division 2A of the Act regulates the production and adducing of evidence of confidential communications. A confidential communication is defined to mean:

a communication, whether oral or written, made in confidence by a person against whom a sexual offence has been, or is alleged to have been committed to a registered medical practitioner or counsellor in the course of the relationship of medical practitioner and patient or counsellor and client, as the case requires, whether before or after the acts constituting the offence occurred or are alleged to have occurred.

15 Section 32AB sets out the guiding principles with respect to the Division:

32AB Guiding principles

It is the intention of Parliament that in interpreting and applying this Division in any legal proceeding that relates (wholly or partly) to a charge for a sexual offence, courts are to have regard to the fact that -

(a) there is a high incidence of sexual violence within society; and

(b) sexual offences are significantly underreported; and

(c) a significant number of sexual offences are committed against women, children and other vulnerable persons including persons with a cognitive impairment; and

(d) offenders are commonly known to their victims; and

(e) sexual offences often occur in circumstances where there is unlikely to be any physical signs of an offence having occurred.

...

16 With respect to the production of documents and the granting of leave, ss 32C and 32D provide:

32C Exclusion of evidence of confidential communications

(1) In a legal proceeding -

(a) a party cannot seek to compel another party to produce a document containing a confidential communication;

(b) a document is not to be produced if it would disclose a confidential communication;

(c) evidence is not to be adduced if it would disclose -

(i) a confidential communication; or

(ii) the contents of a document recording a confidential communication -

unless the court grants leave to compel the production of the document or to produce it or to adduce the evidence, and the party seeking to have the document produced or to produce it or to adduce the evidence has given notice of their intention in accordance with subsection (2).

(2) A party seeking to compel the production of, or to produce or adduce, protected evidence must, not less than 14 days before the evidence is proposed to be compelled to be produced, produced or adduced, give notice in writing of their intention to -

(a) each other party to the proceeding; and

(b) in the case of a criminal proceeding, the informant; and

(c) the medical practitioner or counsellor, as the case requires, if not a party.

(3) The court may -

(a) fix a period of notice shorter than that referred to in subsection (2); or

(b) waive the requirement to give notice under subsection (2).

(4) On receipt of a notice under subsection (2)(b), the informant must give a copy of the notice to the protected confider within a reasonable time after its receipt.

(5) Whether or not notice has been given under subsection (2) or (4), the medical practitioner or counsellor, as the case requires, and the protected confider may, with the leave of the court, appear in the proceeding and make submissions.

(6) For the purpose of determining an application for leave under subsection (1) or (5), the court may order that the document be produced to it and may inspect it but must not make the document available, or disclose its contents, to the applicant for leave.

(7) Evidence that, because of subsection (1), is not to be compelled to be produced, produced or adduced in a legal proceeding is not admissible in the proceeding.

32D Restriction on granting leave

(1) A court must not grant leave to compel the production of, to produce or to adduce protected evidence unless it is satisfied, on the balance of probabilities, that -

(a) the evidence will, either by itself or having regard to other evidence produced or adduced or to be produced or adduced by the party seeking leave, have substantial probative value to a fact in issue; and

(b) other evidence of similar or greater probative value concerning the matters to which the protected evidence relates is not available; and

(c) the public interest in preserving the confidentiality of confidential communications and protecting a protected confider from harm is substantially outweighed by the public interest in admitting, into evidence, evidence of substantial probative value.

(2) Without limiting the matters that the court may take into account for the purposes of subsection (1)(c), the court must take into account -

(a) the likelihood, and the nature or extent, of harm that would be caused to the protected confider if the protected evidence is produced or adduced;

(b) the extent to which the protected evidence is necessary to allow the accused to make a full defence;

(c) the need to encourage victims of sexual offences to seek counselling and the extent to which victims may be discouraged to do so, or the extent to which the effectiveness of counselling may be diminished, if the protected evidence were produced or adduced;

(d) whether the party seeking to compel the production of or to produce or adduce the protected evidence is doing so on the basis of a discriminatory belief or bias;

(e) whether the protected confider objects to the disclosure of the protected evidence;

(f) the nature and extent of the reasonable expectation of confidentiality and the potential prejudice to the privacy of any person.

(3) A court may grant leave to compel the production of, or to produce or adduce, part of -

(a) a confidential communication; or

(b) the contents of a document recording a confidential communication - and, if so, that part of the document may be made available, or that part of its contents disclosed, in any manner that the court thinks fit to the party seeking to compel its production or to produce or adduce it in evidence.

(4) The court must state its reasons for giving or refusing to give leave under this section.

(5) If leave is refused under this section, that fact must not be referred to in the presence of the jury, if any.

Submissions on behalf of Ronald Lyons about why leave should be granted

17 Counsel for Ronald Lyons relied upon the following facts:

(a) By a Notice of Additional Evidence dated 29 January 2018, the prosecution produced a report ('the Report') from Associate Professor PJ Doherty, clinical psychiatrist dated 20 January 2018. The Report records a history given by Arthur which includes:

(i) auditory hallucinations, anxiety, depression and panic attacks.[3]

(ii) a childhood which included sexual abuse over a protracted period.[4]

(iii) treatment in prison by Forensicare nurses and doctors and a psychologist at MAP.[5]

(b) Associate Professor Doherty opines that Arthur 'now reports a fantastic history of childhood trauma that beggars belief'.[6]

18 Accordingly, it was submitted that the subpoenaed material was relevant in assessing Arthur's credibility and reliability and that the evidence had substantial probative value because:

(a) Arthur's evidence of Ronald Lyons' involvement in the killing of the deceased was critical; and

(b) Arthur's credibility would be the subject of serious attack particularly on the basis of the different versions of events he had given.

Submissions on behalf of the Crown about why leave should not be granted

19 Senior counsel for the Crown submitted as follows, in written submissions and in oral submissions on 13 March 2018:

(a) Confidential communication includes all communications made in confidence by a person, against whom a sexual offence has been alleged to have been committed, to a registered medical practitioner or counsellor, in the relevant circumstances, regardless of whether that particular communication makes reference to the sexual offence.

(b) The Applicant does not satisfy the Court that the documents 'will have a substantial probative value to a fact in issue'.

(c) The Applicant has not established that other evidence, of similar or greater probative value, concerning the matters disclosed in the subpoenaed material is not available.

(d) The Applicant has not established that the public interest in preserving confidentiality or confidential communications and protecting a protected confider is substantially outweighed.

(e) The Applicant has not established that the subpoena is not a 'fishing expedition'.

20 In DPP v Baker,[7] the Court of Appeal considered whether the trial judge had properly excluded a confidential communication under s 32C and s 32D of the Act.

(a) The accused had been convicted of two charges of sexual offences against SK, when she was 4 years of age, being one of three child victims.

(b) The accused had sought leave to adduce evidence about SK's confidential communication to a counsellor, which recorded the complaints that, on separate occasions:

(ii) she had been abducted and put in the boot of a car with another girl who was tortured, raped and killed.

(c) The accused proposed to cross-examine SK to the effect that the allegations were so grave and extraordinary that it substantially affected the reliability and credibility of SK.

21 The Court of Appeal upheld the trial judge's refusal of leave on the following grounds:

(a) Assuming that SK's credit was a fact in issue, the requirement of the section that the evidence 'will ... have substantial probative value' imposes a 'high hurdle'.[8]

(b) In the absence of evidence to the contrary, the jury would not be able to assess whether the allegations were true because, as the Court observed, 'Nor, unhappily, is it impossible that SK may have been abducted by an offender or offenders who tortured, raped and killed another girl'.[9]

(c) Although the Court accepted that the evidence 'could have led to a successful attack on SK's credibility'; but that was a matter of speculation and s 32D(1)(a) requires that the evidence 'will' have substantial probative value.[10]

22 Similarly, in Todd v R,[11] the Court of Appeal upheld the trial judge's refusal to grant leave under s 32C of the Act with respect to counselling records. Priest JA (with whom Weinberg and Whelan JJA agreed) held that the trial judge was not obliged to inspect the documents under s 32C(6); and her Honour had correctly found that the Applicant had not demonstrated that the relevant protected evidence had substantial relevance to a fact in issue.[12]

23 With respect to a party's general entitlement to require documents by subpoena, in Commissioner of Australian Federal Police v Magistrates Court of Victoria,[13] J Forrest J identified the relevant principles as follows:

(a) it is necessary for the party at whose request the witness summons was issued to identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought;

(b) the identification of such a legitimate forensic purpose is to be considered by the court without inspecting the documents sought to be produced;

(c) the applicant for the witness summons must also satisfy the court that it is "on the cards", or that there is a "reasonable possibility", that the documents sought under the subpoena "will materially assist the defence";

(d) a "fishing expedition" is not a legitimate forensic purpose and will not be permitted;

(e) the relevance of a document to the proceeding alone will not substantiate an assertion of legitimate forensic purpose. There is no legitimate forensic purpose if the party is seeking to obtain documents to see whether they may be of relevance or of assistance in his or her defence;

(f) a mere assertion of bad faith by an applicant or that something might be found demonstrating bad faith is not enough - the criteria set out in (c) must be satisfied;

(g) in criminal proceedings a "more liberal" view is taken by a court in respect of the application of the test. Special weight is to be given to the fact that the documents may assist the defence of the accused;

(h) where a party fails to demonstrate a legitimate forensic purpose, the court should refuse access to the documents and set aside the witness summons.[14]

24 The primary object of statutory construction is to construe the relevant provision so that its legal meaning is consistent with:

(a) the language of the relevant provision, being the text; and

(b) the legislative purpose of the statute.[15]

The legal meaning is 'the meaning that the legislature is taken to have intended the provision to have'.[16] It may or may not be the same as the literal meaning.[17]

25 Accordingly, in statutory construction, the focus is on the text and the legislative purpose as follows:

(a) The primacy of the text has been emphasised by the High Court.[18] It has been said that the process of statutory interpretation starts and ends with the text.[19]

(b) To ascertain the legislative purpose, the Court first considers the text of the relevant provision in its context.[20] The context means:

(iii) the mischief that the statute was intended to remedy;[21] and

(iv) the history of the legislative scheme.[22]

26 Pursuant to s 35(b) of the Interpretation of Legislation Act 1984, '[i]n the interpretation of a provision of an Act ... consideration may be given to' extrinsic material to ascertain the purpose of the legislation, even if the language is clear and unambiguous.[23] I emphasise 'may' because if the meaning of the text is plain 'there is no occasion to look to extrinsic material';[24] and as the Court of Appeal has said in the context of the section:

(a) 'it would be inappropriate to resort to parliamentary debates in order to seek to create an ambiguity in a section which is otherwise, at least in relative terms, clear';[25] and

(b) 'the court needs to be careful not to permit recourse to this section to undermine its primary function of seeking to ascertain the intention of the legislation from the content of the Act itself'.[26]

The section does permit 'a court to consider the purposes of an Act in determining whether there is more than one possible construction';[27] but such material cannot displace the meaning of the statutory text.[28]

27 If the literal meaning of the text is consistent with the identified legislative purpose, the literal meaning will be accepted as the legal meaning.

28 However, if the literal meaning conflicts with the identified legislative purpose, a departure from the literal meaning may be justified. The resultant tension was described by Francis Bennion in 'Statutory Interpretation':

Consideration of the enactment in its context may raise factors that pull in different ways. For example, the desirability of applying the clear literal meaning may conflict with the fact that this does not remedy the mischief that Parliament intended to deal with.[29]

29 Examples of conflicts between the literal meaning and the identified legislative purpose, which have justified departure from the literal meaning, have included the following:

(a) The literal meaning would conflict with other provisions of the statute.

(b) The literal meaning is inconsistent with the purpose of the statute.

(c) The literal meaning is incapable of practical application.

(d) Adoption of the literal meaning would lead to a result that is absurd, unreasonable or anomalous.[30]

30 If it is determined that such a conflict exists, the approach to reconciliation of the conflict is as follows:

(a) First, if an alternative construction is to be adopted as the legal meaning, it is necessary that the alternative construction is 'reasonably open'[31] and 'consistent with the language in fact used by the legislature'.[32] This is necessary because 'the task remains the construction of the words the legislature has enacted'.[33] 'The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions'.[34]

(b) Section 35(a) of the Interpretation of Legislation Act 1984 provides that 'a construction that would promote the purpose of object underlying the Act ... is to be preferred to a construction that would not promote that purpose or object'. The choice is only between a purpose that will promote the purpose; and one that will not. The section is not directed to the choice 'as to the construction which will best achieve the object of the Act'.[35]

(c) If the inconsistency between the literal meaning and the legislative purpose is the result of 'simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision', an alternative construction, which is consistent with the legislative purpose, may be more 'readily' adopted.[36]

(d) After the identification of an alternative construction, the legal meaning will be determined by balancing:

(i) the strength of the literal meaning as against the alternative construction; and

(ii) the extent to which these meanings are consistent with the promotion of the legislative purpose.

31 This balancing exercise has been explained by the High Court as follows:

(a) 'If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended.'[37]

(b) '[I]nconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which ... is reasonably open and more closely conforms to the legislative intent'.[38]

32 With respect to interpreting a provision as if it contained additional words, guidance has been provided by the plurality of the High Court in Taylor v Owners - Strata Plan No 11564.[39] Their Honours stated that 'the task remains the construction of the words the legislature has enacted. ... any modified meaning must be consistent with the language in fact used by the legislature.'[40] The plurality said that whether an interpretation of a provision, as if it contained additional words, is justified involves a judgment of matters of degree, and explained:

That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills 'gaps disclosed in legislation' or makes an insertion which is 'too big, or too much at variance with the language in fact used by the legislature'.[41]

Preliminary views about the application of Division 2A

33 The scope of the protection afforded by Division 2A of the Act is delineated by the construction of the definition of a 'confidential communication' in s 32B(1).

34 Arguably, on the most literal interpretation, a confidential communication includes any matter communicated to a medical practitioner or counsellor by any person ('protected confider'), who alleges that a sexual offence has ever been committed against him or her ('the broad definition').

35 The broad definition would appear to have an extremely extensive application - for example:

(a) If the communication could be unrelated to the sexual offence, an elderly plaintiff, bringing a claim for personal injuries, could claim confidentiality with respect to the notes of his or her doctor about the personal injury (the subject of the claim), although they be completely unrelated to any alleged sexual offence, on the basis that he or she had been the victim of a sexual offence many decades before.

(b) If there is no restriction on who can make the allegation of a sexual offence, a person could claim confidentiality in any litigation with respect to communications with his or her doctor, by alleging that he or she had been the victim of a relevant sexual offence at any time in the past. Such an allegation could be completely without foundation; but may nonetheless provide the claimant with the protection under Division 2A. Even if one was to import a requirement that the allegation be on reasonable grounds, the Court may then be required to embark on an inquiry about whether there were reasonable grounds for the purported protected confider's allegation. Such an inquiry may cause the very emotional or psychological harm, which Division 2A is intended to prevent.

36 Accordingly, the issue of statutory construction is whether the broad definition should be adopted or whether, properly construed, the definition of confidential communication should be limited to:

(a) a communication about a matter related to a sexual offence; and/or

(b) an allegation of a sexual offence in the relevant proceeding.

37 Division 2A was introduced into the Act (then the Evidence Act 1958) by the Evidence (Confidential Communications) Act 1998. By that amendment, Division 2A only required leave for the adducing of evidence of a confidential communication in a legal proceeding. However, the Act was further amended by the Crimes (Sexual Offences) Act 2006 ('the amending Act') which:

(a) inserted the 'Guiding Principles' in s 32AB; and

(b) extended the requirement for leave, from the adducing of evidence, to a party seeking to subpoena a document containing a confidential communication.[42]

38 Section 1 of the Crimes (Sexual Offences) Act 2006 sets out the following with respect to the purpose of that Act:

The main purpose of this Act is to amend the Crimes Act 1958, the Crimes (Criminal Trials) Act 1999, the Evidence Act 1958 and the Magistrates' Court Act 1989 to make further provision in relation to sexual offences, including the definition of offences and the giving of evidence in legal proceedings that relate to a charge for a sexual offence.

39 The explanatory memorandum to the Crimes (Sexual Offences) Bill stated as to the object of the Bill:

The object of this Bill is to amend the Crimes Act 1958, the Crimes (Criminal Trials) Act 1999, the Evidence Act 1958 and the Magistrates Court Act 1989 -

• to improve the experiences of complainants who are children or persons with a cognitive impairment in the prosecution of sexual offences; and
• to further provide for the protection of children and persons with a cognitive impairment from sexual assault; and
• to improve the rules of evidence applicable in the prosecution of sexual offences to provide a better balance of fairness between the defendant and the complainant.

40 With respect to the 'Guiding Principles' included in the amending Act, the explanatory memorandum states as follows:

Clause 27 inserts guiding principles to assist courts in interpreting and applying Divisions 3 and 3AA of Part II of the Evidence Act 1958. These guiding principles state the social problem that sexual offence laws and procedures, including those in this Bill, aim to address, and provide further guidance where ambiguity may exist in the interpretation.

41 In the second reading of the amending Act, the Attorney-General referred to the purpose of the amending Act to provide certain protections for 'complainants'. In particular, he stated as follows:

The bill will amend the Evidence Act to ensure that a complainant's privacy and dignity are better preserved through clearer and tighter restrictions on the use of evidence related to the complainant's sexual history or activities with the accused person or with another person, and to confidential counselling communications between a complainant and their counsellor.[43]

42 Although the broad definition may have an advantage on a literal reading, it appears to have unintended and anomalous consequences and there is 'an alternative [more limited] construction which ... is reasonably open and more closely conforms to the legislative intent'.[44] Accordingly, my preliminary view is that a more limited construction should be preferred as the legal meaning - for the following reasons:

(a) The statutory purposes of Division 2A, as discerned from a reading of Division 2A including the Guiding Principles in s 32AB, the amending Act, the explanatory memorandum to the amending Bill and the second reading speech of the Attorney-General, are principally:

(i) to protect complainants in proceedings relating to charges for sexual offences from harm arising from unnecessary disclosure of confidential communications with medical practitioners and counsellors about the subject matter of the alleged sexual offence;

(ii) to promote the treatment of the victims of sexual offences by medical practitioners and counsellors; and

(iii) to promote the reporting of sexual offences by victims.

(b) As the examples referred to in [35] above show, the broad definition of 'confidential communication' extends the protection well beyond the purposes intended by Division 2A.

(c) An interpretation which limits the definition to:

(i) confidential communications relating to the subject matter of the sexual offence; and

1. the relevant litigation; and
2. the sexual offence or the allegation of a sexual offence

would sit more conformably with the purposes of Division 2A.

43 Sexual abuse in Arthur's childhood is not the subject of an allegation in any legal proceeding; and I doubt that Arthur's communication of his allegations constitutes a 'confidential communication' as defined in Division 2A.

44 My preliminary opinion is that, had Arthur's communication of his allegations constituted a 'confidential communication', I would have been satisfied, on the balance of probabilities, of each of the elements of s 32D(1)(a), (b) and (c) for the following reasons:

(a) In the context of this murder trial, the subpoenaed material will have substantial probative value to a fact in issue. The only direct evidence of the Applicant's involvement in the killing of the deceased is from Arthur. His evidence is critical to the prosecution case; and therefore the ability to challenge it is critical to the defence. The fact that Arthur alleges serious childhood trauma is of substantial relevance to the Applicant's alleged involvement in the murder of the victim because, in combination with other evidence, the Applicant's counsel will seek to establish that the evidence of Arthur cannot be accepted because he is delusional and/or a fabricator of stories. Counsel for the Applicant will cross-examine Arthur on the basis that his history of abuse is the product of delusions or a fabrication. I accept that Applicant's counsel requires as complete a history as possible to properly conduct the cross-examination.

(b) Evidence of similar or greater probative value concerning the matters to which the subpoenaed material relates is not available. There is other evidence concerning Arthur's allegations of childhood trauma; but the subpoenaed material provides a more extensive and detailed history of Arthur's allegation of childhood trauma. It is only by the Applicant's counsel having access to the subpoenaed material can the Applicant be afforded a full opportunity to attack the credibility of Arthur.

(c) The public interest in preserving the confidentiality of the material and protecting Arthur from harm is substantially outweighed by the public interest in admitting, into evidence, the subpoenaed material.

45 With respect to the public interest consideration referred to in subparagraph (c) immediately above, I have had regard to the following:

(a) Arthur's allegations of childhood trauma are already known to counsel for the Applicant and relate to events which occurred decades ago. Although cross-examination about these matters will undoubtedly be very unpleasant for Arthur, there will be cross-examination about these matters in any event; and I do not consider that any harm will be significantly aggravated by the release of the subpoenaed material.

(b) In my opinion, as stated above, the ability to attack the reliability and credibility of Arthur is critical to the Applicant and release of the subpoenaed material is necessary to allow the Applicant to make a full defence.

(c) The childhood abuse is alleged to have occurred a number of decades ago and Arthur's counselling arises following his killing of the victim, which is unrelated to any sexual offences. I do not consider that the release of the subpoenaed material will discourage victims of sexual offences from seeking counselling.

(d) I accept that the Applicant is seeking access to the subpoenaed material for a legitimate forensic purpose and not on the basis of a discriminatory belief or bias, or as part of a 'fishing expedition'.

(e) Arthur voluntarily disclosed his allegations of sexual abuse to Associate Professor Doherty in the course of Doherty's assessment of him on 16 December 2017. Arthur could have a reasonable expectation of confidentiality but, in view of the fact that his allegations of childhood trauma have already been disclosed, I do not consider that there is a significant potential prejudice to his privacy.

46 I again state that the above views about whether leave would have been granted, if Division 2A was applicable, are preliminary and I did not have the advantage of submissions from Arthur. However, if I had found that Division 2A was applicable to the subpoenaed material and I had been finally determining the question of leave, notice to Arthur would have been required.

[1] [2017] VSC 702R.

[2] Summary of prosecution opening [57]-[68].

[7] [2015] VSCA 323 (Redlich, McLeish JJA and Beale AJA).

[11] [2016] VSCA 29 (Weinberg, Whelan and Priest JJA).

[13] [2011] VSC 3. Adopted by the Court of Appeal in Woolworths Ltd v Svajcer [2013] VSCA 270 [16] Nettle, Ashley and Neave JJ).

[15] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381-2 [69] (McHugh, Gummow, Kirby and Hayne JJ) ('Project Blue Sky').

[18] See examples cited in Commissioner of State Revenue v EHL Burgess Properties Pty Ltd [2015] VSCA 269 [56]-[62] and the discussion in Di Paolo v Salta Constructions Pty Ltd [2015] VSCA 230 [32]-[48] (Osborn and Kyrou JJA) and Lowe v The Queen [2015] VSCA 327; (2015) 48 VR 351, 357-9 [12]-[18] (Warren CJ).

[19] Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503, 519 [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ). The expression was adopted by the High Court in Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664, 671 [22] (French CJ, Hayne, Kiefel, Gageler and Keane JJ) and also by the Court of Appeal in DPP v Walters [2015] VSCA 303; (2015) 49 VR 356, 358 [2] (Maxwell P and Redlich, Tate and Priest JJA).

[20] This approach 'needs no ambiguity or inconsistency; it allows a court to consider the purposes of an Act in determining whether there is more than one possible construction': see Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214, 235 (Dawson J).

[21] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408 (Brennan CJ, Dawson,

1. [22] Ibid. Federal Commissioner of Taxation v Consolidated Media Holdings [2012] HCA 55; (2012) 250 CLR 503, 519 [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ). Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297, 306 (Gibbs CJ), 324 and 334 (Aitkin J).

[23] (Emphasis added). Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214, 235 (Dawson J); Humphries v Poljak [1992] VicRp 58; [1992] 2 VR 129, 136 (Crockett and Southwell JJ); Alcoa Portland Aluminum Pty Ltd v Victorian Workcover Authority [2007] VSCA 210; (2007) 18 VR 146, 159 [39] (Chernov JA with whom Maxwell ACJ and Neave JA agreed); Secretary to the Department of Justice and Regulation v Century 21 Australia Pty Ltd [2017] VSCA 205, [48] (Whelan, Beach and Ferguson JJA).

[24] Catlow v Accident Compensation Commission [1989] HCA 43; (1989) 167 CLR 543, 550 (Brennan and Gaudron JJ).

[25] Rizza v Fluor Daniel GTI Australia Pty Ltd [1998] VSCA 131; [1999] 1 VR 405, 414 [37] (Chernov JA with whom Winneke P and Brooking JA agreed).

[26] Masters v McCubbery [1995] VICSC 209; [1996] 1 VR 635, 646 (Winneke P).

[27] Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214, 235 (Dawson J).

[28] Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503, 519 [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ); Northern Territory v Collins [2008] HCA 49; (2008) 235 CLR 619, 642 [99] (Crennan J).

[29] Francis Bennion, Statutory Interpretation: A Code (Butterworths, 3rd ed, 1997) 343-4; referred to with approval in Project Blue Sky (1998) 194 CLR 355, 384 [78] (McHugh, Gummow, Kirby and Hayne JJ).

[30] Colonial Range Pty Ltd v CES-Queen (Vic) Pty Ltd [2016] VSCA 328 [53] (Warren CJ, Whelan JA and Riordan AJA) (citations omitted).

[31] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ).

[32] Taylor v Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531, 549 [39] (French CJ, Crennan and Bell JJ). Although the Court was here referring to a modified meaning as one which added or omitted words, a fortiori, it must also be a requirement whenever a court is to infer that the legal meaning is other than a literal or grammatical meaning.

[34] Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378, 390 [26] (French CJ and Hayne J).

[35] Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249, 262 (Dawson, Toohey and Gaudron JJ).

[36] Taylor v Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531, 548 [38] (French CJ, Crennan and Bell JJ). The unique nature of the power to correct drafting errors was recognised in Inco Europe Ltd v First Choice Distribution (a firm) [2000] UKHL 15; [2000] 1 WLR 586. At 592, Lord Nicholls said 'It has long been established that the role of the courts in construing legislation is not confined to resolving ambiguities in statutory language. The court must be able to correct obvious drafting errors. In suitable cases, in discharging its interpretative function the court will add words, or omit words or substitute words. ... This power is confined to plain cases of drafting mistakes'.

[37] Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297, 321 (Mason and Wilson JJ).

[38] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ).

[39] [2014] HCA 9; (2014) 253 CLR 531 (French CJ, Crennan and Bell JJ).

[41] Ibid 548 [38] (citations omitted).

[42] Sections 27-32 of the Crimes (Sexual Offences) Act 2006.

[43] Victoria, Parliamentary Debates, Legislative Assembly (Rob Hulls, Attorney-General, 16 November 2005) 2184 (underlining added).

[44] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ).