The State of New South Wales v McCarthy

Supreme Court of NSW|2015-11-20|Before: Fagan J

Judgment

These proceedings were commenced by summons filed on 30 September 2009 in which the plaintiff sought an extended supervision order against the defendant pursuant to s 9 Crimes (Serious Sex Offenders) Act 2006 (NSW). That Act has since been substantially amended and renamed the Crimes (High Risk Offenders) Act (NSW). I will refer to it hereafter as "the Act".
There is now before the Court a further amended notice of motion filed 6 November 2015 by which the plaintiff seeks the following order: "Leave be granted to the plaintiff to disclose the reports of Dr Anthony Samuels and Dr Samson Roberts, being two court appointed experts who produced reports in these proceedings, for the purpose of a psychiatric assessment of the defendant in sentencing proceedings that are pending before the Manly Local Court".

Procedural history

When these proceedings began in late 2009, s 7 of the Act (which provides for psychiatric reports in respect of an offender whom it is sought to place under an extended supervision order) was in these terms (extracted so far as relevant): "7 Pre-trial procedures (1) An application for an extended supervision order must be served on the sex offender concerned within 2 business days after the application is filed in the Supreme Court or within such further time as the Supreme Court may allow. (2) … (3) A preliminary hearing into the application is to be conducted by the Supreme Court within 28 days after the application is filed in the Supreme Court or within such further time as the Supreme Court may allow. (4) If, following the preliminary hearing, it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must make orders: (a) appointing: (i) 2 qualified psychiatrists, (ii) … (iii) … (iv) … to conduct separate psychiatric…examinations…of the offender and to furnish reports to the Supreme Court on the results of those examinations, and (b) directing the offender to attend those examinations. (5) …"

Defendant's criminal record

The defendant was born on 16 October 1968. He was 41 years old when the application for the extended supervision order was determined by Hall J. His Honour noted that by that time, during the 23 years from when he had attained 18 years of age, the defendant had spent only two years in the community and the remainder in custody. A brief summary of his criminal history is as follows:

1 February 1987, aged 18 years: the defendant broke into the home of an 85 year old woman who lived next door to him and his family. He confronted her wearing a mask and stocking over his face, attempted to have sexual intercourse with her three times, bound and gagged her and threatened to cut her throat with a knife. He was arrested that day and spent one month in custody on remand. Then he was on bail for five months until sentenced in late August 1987. He was given an effective term of 5 years (allowing for concurrence of sentences for individual offences) from 28 August 1987 to 27 August 1992. He was released on parole after less than two and a half years on 10 December 1989.
27 November 1990, aged 22 years: the defendant induced a 17 year old girl to accompany him in a van on the pretext that he was taking her to a home where she would act as a babysitter. He stopped the van and subjected the young girl to a series of violent sexual assaults including three instances of penile vaginal penetration, two of forced fellatio and one of anal intercourse. He was arrested on 4 December 1990. The defendant was remanded in custody until sentence was passed, initially in the District Court. His sentence was increased in the Court of Criminal Appeal to a total effective penalty (allowing for concurrence of sentences for individual offences) of 10 years comprising a non-parole period of 7 years and 6 months and an additional term of 2 years and 6 months.
The defendant's parole under the term of imprisonment for the offences of 1 February 1987 was revoked. He served the balance of the term (slightly over two years) in the period from his arrest on 4 December 1990 up to 16 December 1992. The sentences for the offences of 27 November 1990 were therefore ordered to date from 17 December 1992. Evidently he was not considered suitable for parole in relation to those matters and served out the whole of his head sentence of 10 years. His disciplinary record whilst in custody may have been a factor in the refusal to release him on parole. He was repeatedly disciplined for abusive language, assaults, not complying with routine, damaging property and so on. He was released on expiry of the 10 year head sentence, on 16 December 2002.
15 May 2003 and 5 June 2003, aged 34 years: on 15 May 2003 the defendant committed an offence of using a telephone service to call two women and claim that he had abducted the daughter of one of them and committed a number of sexual offences on her and otherwise harmed her. On 5 June 2003 he used a telephone service to call a female music teacher and threaten that he was going to rape her. He was sentenced to cumulative fixed terms of 12 months on each of these two charges and a term of 9 months with a non-parole period of one month (also cumulative) on another charge - effectively 2 years and one month before being eligible for parole. These sentences were imposed on 19 August 2004 and commenced on 5 November 2003. The non-parole period expired on 4 December 2005 and the head sentence expired on 4 August 2006.
August and September 2003, aged 34 years: 7 counts of sexual intercourse with a female aged between 10 and 16 years, committed while awaiting sentence for the May/June 2003 offences. These are the offences referred to at [4] above, for which his sentence was close to expiry when the proceedings for an extended supervision order were instituted. The defendant was arrested on these charges on 26 September 2003 and remanded in custody. It appears that an aggregate sentence was imposed for the offences of August and September 2003, namely 4 years with a non-parole period of 3 years. These terms were ordered to commence on 24 October 2005, effecting a slight overlap with the sentences for the May and June 2003 offences. The head sentence for the offences of August and September 2003 was to run from 24 October 2005 to 23 October 2009.

Upon his release from prison in October 2009 and after the extended supervision order had been made by Hall J with effect for 5 years commencing 16 December 2009, the defendant soon offended again. He was arrested on 16 January 2010 for failing to comply with the terms of the supervision order. He had had unsupervised contact with children and had failed to advise Community Corrections of a sexual relationship. A Pre-Sentence Report recently prepared for the Local Court at Manly, dated 17 October 2015, records that his response to supervision during his brief time in the community, from late 2009 to early 2010, was "confrontational and problematic" and had resulted in him being issued with over 25 written warnings.
The offender was sentenced on 9 August 2010 for his breaches of the extended supervision order. Taking into account partial accumulation, he was given a total effective sentence of 9 months and 15 days commencing 14 February 2010, with a non-parole period of 7 months and 11 days expiring 24 September 2010.
Whilst in custody for these breaches he was charged with and convicted of historical sexual offences against an adult female which he had committed in October 1990. For these he was sentenced to concurrent terms which led to a further effective sentence of 5 years, dating from the completion of his sentence for breaching the extended supervision order, with a non-parole period of 3 years. This made him eligible for parole on 24 November 2013. However according to the Community Corrections report of 17 October 2015, he was "again denied parole on the basis of his risk of reoffending and being 'unlikely to adapt to normal lawful community life'. He was eventually granted parole on 15 April 2015".
From 15 April 2015 the defendant resumed supervision under the extended supervision order of Hall J. By force of s 10(5) of the Act the order is "suspended while the offender is in lawful custody". Section 10(1A)(b) has the effect that the period of operation of the order is further extended by each period of suspension. The original expiry would have been 15 December 2014. The period of incarceration from 16 January 2010 to 15 April 2015 pushed the expiry date back to 18 February 2020.
On 27 August 2015 the defendant was arrested on a charge that on 9 August 2015 he did stalk or intimidate a person intending to cause fear of physical or mental harm, contrary to s 13(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW). He has remained in custody since his arrest. He pleaded guilty to that charge at Manly Local Court on 3 September 2015 and sentence proceedings are listed for 2 December 2015.
On 8 September 2015 the State Parole Authority revoked the defendant's parole in relation to the sentence which he was serving when released on 15 April 2015. This related to the historical sexual assault offences dating from October 1990 (see [12] above). The date of expiry of Hall J's extended supervision order continues to be deferred by one extra day for every day the offender remains in custody.
On 10 September 2015 the Local Court at Manly ordered that there be prepared with respect to the defendant a full Pre-Sentence Report and a full Justice Health Psychiatric Report. No doubt these are required to assist the Court in determining the appropriate sentence for the offence of 9 August 2015. Given the criminal history summarised above, a comprehensive updated psychiatric report on the defendant may well be material to a number of aspects of the Local Court's sentencing discretion. Such a report may identify whether a psychiatric condition suffered by the defendant contributed to his offending on the subject occasion. Psychiatric opinion would indicate whether or not any treatment may be capable of addressing any psychiatric condition or personality disorder affecting the defendant and what the prospects may be of him co-operating in such treatment and of it modifying his recidivism. A psychiatrist's report might aid the Magistrate in determining the likelihood of re-offending and whether a prison sentence of greater or lesser length would likely have any specific deterrent effect or might be necessary for the protection of the community.

Purpose for which the 2009 psychiatric reports are to be used

Pursuant to the order of the Local Court at Manly, Justice Health has furnished a forensic psychiatric report of Professor D M Greenburg. He interviewed the defendant at Silverwater Correctional Facility on 16 October 2015. The Professor has listed in his report the written material to which he has had access, including the medical record of the defendant maintained by Justice Health. The Professor's report contains the following statement in relation to the materials considered by him: "Unfortunately the writer of this report did not have access to all the psychological and psychiatric reports. This information would have been of assistance in conducting this assessment."
This observation is repeated at page 5 of the report as a preface to the Professor's opinion about the defendant's psychiatric condition. The opinion is stated in provisional terms, evidently with a reservation by reason of not having seen all past psychiatric reports.
Similarly, in a portion of the report at page 5 where the Professor tentatively nominates future management of the defendant, he has included the following caveat: "I cannot make any further comments regarding treatment recommendations as this information would be available with previous psychological and psychiatric reports. Unfortunately the writer did not have access to these reports at this time".
Having regard to Professor Greenburg's reservations, the plaintiff wishes to make available to him the reports which were prepared for this court under s 7 of the Act in late 2009. The two psychiatrists who prepared those reports had each been briefed with four folders of documents relating to the defendant's history of offending. Dr Samuels' report of 10 November 2009 lists a great deal of this material and provides summaries of some parts of it. Dr Roberts' report of 5 November 2009 incorporates extracts of many of the records with which he was provided. Both doctors' reports appear to be very soundly based upon detailed consideration of available objectively recorded material, dating back to the commencement of the defendant's criminal career. Provision of these reports to Professor Greenburg would undoubtedly assist him towards greater confidence and finality in the report which he has been required to provide to the Local Court at Manly.

Principles upon which the 2009 reports may be released

Both parties have treated the plaintiff's application for release of the 2009 reports to Professor Greenburg as governed by principles enunciated in cases such as Harman v Secretary of State for Home Office [1983] 1 AC 280 and Hearne v Street (2008) 235 CLR 125. Professor Greenburg is either a consultant to or an employee of Justice Health. Provision of the document to him would be, in effect, provision to Justice Health. That is a statutory health corporation constituted under s 41 Health Services Act 1997 (NSW). By force of s 45 of that Act such a corporation is a distinct legal entity which may take proceedings and be proceeded against in its corporate name. It does not represent the Crown. Justice Health is not, therefore, merely a part or emanation of the State of New South Wales itself and issue of the reports by the plaintiff to Professor Greenburg would have to be regarded as dissemination to a third party.
In Hearne v Street Hayne, Heydon and Crennan JJ said at 154: "Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits" (citations omitted).
As a shorthand expression I refer hereafter to the principle stated in the above passage as "the Hearne v Street principle". Their Honours observed that although the prohibition on collateral use of documents produced under compulsion in litigation is commonly expressed as an implied undertaking on the part of the party who obtains the documents, in substance it is simply a legal obligation: see [105] - [108] and [115] of the joint judgment. Notably for present purposes, the obligation is not confined to documents which existed before the litigation commenced, such as those which may be required to be produced under subpoena or under orders for discovery and inspection. The obligation also applies to documents which are created by one of the parties in the course of the proceedings, such as witness statements and affidavits.
Unlike Hearne v Street, the present is a case where, first, the documents which the plaintiff now wishes to use were not produced by the opposing party in the litigation but by strangers to it. They were made and delivered up by Doctors Samuels and Roberts. That circumstance alone would not exclude the application of the Hearne v Street principle: Welfare v Birdon Sands Pty Ltd (1997) 79 FCR 220. Secondly, the reports were not brought into existence under the Court's usual procedures applicable to all litigation. Section 7(4), as in force when the subject reports were produced, mandated that the court "must make orders" for such psychiatric reports if satisfied at the preliminary hearing that the matters alleged by the plaintiff would, if proved, justify the making of an extended supervision order. Accordingly the subject reports were generated under a machinery provision which is an integral part of the statutory creation of this novel and very specific power of the court.
Thirdly, when the reports were made and furnished under the orders which the Court was required to make, their production was not to the plaintiff but to the Court itself. The Act provides that reports produced under s 7(4) will necessarily be received in evidence on the hearing of the application: s 9(3)(b). This subsection has remained unamended from 2009 to the present. Although the Act is silent as to whether the parties to the application for the extended supervision order should receive copies, it follows implicitly from the nature of the substantive proceedings envisaged by the Act that they would. Section 7 provides that the offender who is the intended object of the supervision order is to be served with the application. The parties could not conduct the substantive proceedings unless they had copies of the material which the Court would be taking into account, in particular the expert reports which the Court is bound by the Act to obtain and to consider. All of this means that the reports effectively came into the plaintiff's hands from the Court which had ordered them, not from the defendant, albeit that information given by him to the psychiatrists was part of the foundation of the reports.
Neither party has cited any authority where the principle in Hearne v Street has been extended to documents produced in circumstances with all of the distinguishing features described above. In the present state of the law I do not consider that the principle is applicable to psychiatric reports provided to the court under s 7. I do not consider that the plaintiff is under any obligation to refrain from disclosing or using the 2009 psychiatrists' reports in other proceedings.
The Act itself imposes no express restraint upon any collateral use which may be made of the reports by either party once received. However nor does the Act contain any express dispensation for the parties to use them for any purpose other than the proceedings arising under it. Section 21 was in the following terms when these proceedings were commenced in 2009. (This section, also, has not been amended since): "21. Proceedings under this Act (including proceedings on an appeal under this Act) are civil proceedings and, to the extent to which this Act does not provide for their conduct, are to be conducted in accordance with the law (including the rules of evidence) relating to civil proceedings." Section 21 is not in my opinion sufficient to attract the operation of the principle in Hearne v Street with respect to the 2009 reports.

Considerations relevant to release of the reports

The circumstances in which the 2009 reports have come into the plaintiff's hands give rise to a power of the Court to make orders with respect to their collateral use, based on the Court's inherent jurisdiction to protect its own processes against abuse. There is no abuse involved in the purposes to which the plaintiff wishes to put the reports, in the circumstances considered at [34] - [39] below. For more abundant caution I will also consider whether the plaintiff should be permitted to use the reports upon the assumption that they are subject to the Hearne v Street principle. This requires consideration of, first, whether the reports have by now entered "the public domain" and secondly, if they have not, whether the Court should in the exercise of its discretionary power relieve the plaintiff of the restraint upon collateral use.
The reports of Doctors Samuels and Roberts were received in evidence and both doctors were examined orally before Hall J. The contents of the reports and aspects of the doctors' oral testimony are referred to extensively in his Honour's judgment.
In Harman v Secretary of State for Home Office the House of Lords accepted that the obligation (there referred to as an implied undertaking) not to use documents produced by compulsion for any purpose other than the proceedings in which they were produced would become unenforceable once the relevant documents entered the public domain. In some of the cases there are dicta to the effect that a document will enter the public domain if it is tendered and received as an exhibit in proceedings: Esso Australia Resources Ltd v Plowman [1995] HCA 19; (1995) 183 CLR 10 per Mason CJ at 183 CLR pp. 32-33; Ainsworth v Hanrahan (1991) 25 NSWLR 155 per Kirby P at 168. These dicta have been considered by the Victorian Court of Appeal in the course of a comprehensive consideration of what constitutes entering the public domain for this purpose: British American Tobacco Australia Services Ltd v Cowell [2003] VSCA 43. The court concluded at [48] that a party "is not freed of [the restraint upon collateral use] simply because the document in question is marked as an exhibit in the proceeding in the course of which it was provided".
The court said that "to the extent that knowledge of the document has become public by dint of its tender in open court, members of the public will be free to make use of that knowledge as they will (subject… to any order specially made protecting confidentiality…), but the party affected by the [implied] undertaking remains bound as to use of the document itself".
In the judgments on this subject handed down by courts whose decisions are directly binding upon a single judge of this Division, I have not been able to identify any definitive holding to the effect that reception in to evidence of a document compulsorily produced, without more, will terminate the obligation of a party not to make collateral use of the document. Therefore, if the Hearne v Street principle applies to these reports, the plaintiff's present application for leave to disseminate them to Professor Greenburg would depend upon the court exercising its discretion to exempt the plaintiff from its otherwise obligation not to do so.
In Liberty Funding Pty Ltd v Phoenix Capital Pty Ltd [2005] FCAFC 3; (2005) 218 ALR 283 the Full Court of the Federal Court said: "In order to be released from the implied undertaking it has been said that a party in the position of the appellants must show "special circumstances": see, for example, Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217; 110 ALR 685. It is unnecessary to examine the authorities in this area in any detail. The parties were not in disagreement as to the legal principles. The notion of "special circumstances" does not require that some extraordinary factors must bear on the question before the discretion will be exercised. It is sufficient to say that, in all the circumstances, good reason must be shown why, contrary to the usual position, documents produced or information obtained in one piece of litigation should be used for the advantage of a party in another piece of litigation or for other non-litigious purposes. The discretion is a broad one and all the circumstances of the case must be examined. In Springfield Nominees, Wilcox J identified a number of considerations which may, depending upon the circumstances, be relevant to the exercise of the discretion. These were: • the nature of the document; • the circumstances under which the document came into existence; • the attitude of the author of the document and any prejudice the author may sustain; • whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain; • the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information); • the circumstances in which the document came in to the hands of the applicant; and • most importantly of all, the likely contribution of the document to achieving justice in the other proceeding."
There are features of these proceedings and of the place of the subject reports within them which appear to be "special" in the sense of distinguishing the matter from the general run of cases where the prohibition upon collateral use applies. First, the provision of these reports to Professor Greenburg is highly likely to contribute to achieving a just outcome in the sentence proceedings before the Magistrate sitting at Manly. This consideration has been regarded as one to be accorded great weight: Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 110 ALR 685 at 693 - 694.
In Australian Trade Commission v Deputy President McMahon (1997) 73 FCR 211 Lehane J said at 217: "Where an application for release is decided in contested proceedings, it seems that 'special circumstances' will fairly readily be found where it is established that the use of documents discovered in a proceeding is reasonably required for the purpose of doing justice between the parties in other proceedings [citation omitted]. Where an authority or person charged with the investigation of possible criminal conduct is a party to a proceeding and obtains, through for example documents discovered in the proceeding, information suggesting that criminal conduct, of a kind which the authority or person is charged to investigate, the public interest seems to me to require, in most cases at least, that permission be given to use the information for that purpose".
The comprehensive reports of Doctors Samuels and Roberts, dating from 6 years ago, may be expected to assist Professor Greenburg greatly in providing his expert opinion to the Local Court about the progression and development of the defendant's mental state, with respect to his offending. It is self-evident from the reading of all of the reports referred to in this judgment that the defendant's history over a considerable period of time must be material to the formation of opinions about him by psychiatrists.
Secondly, the reports are not proposed to be released publicly or widely but only to a forensic medical expert and only for the purpose of another proceeding which is, effectively, between the same parties as this proceeding in which the reports were originally produced. The parties are the State of New South Wales (whose police prosecutor is conducting the case in the Magistrate's court) and the defendant.
Thirdly, the collateral proceeding for which the reports would be relevant (indirectly, by being taken into account in the formation of Professor Greenburg's opinion) are of a nature closely related to the proceedings where the reports were first produced. The proceedings in this Court concerned the need for extended supervision of the defendant arising out of the "high degree of probability that the offender is likely to commit a further serious sex offence if he… is not kept under supervision". Those are the words of s 9(2) of the Act, which were found by Hall J to be fulfilled by the evidence presented to his Honour. The collateral proceedings in the Local Court are a prosecution for yet another offence by the defendant, this time in the nature of intimidation.
Fourthly, given the related nature of the two proceedings and the relevance of the reports of Doctors Samuels and Roberts to both, there is a very strong public interest, involving protection of the community, in having Professor Greenburg fully informed. In Esso Australia Resources Ltd v Plowman at 183 CLR p 37 Brennan J recognised public interest as a factor which may be important in deciding whether the prohibition on collateral use should be relaxed.

Conclusion

Upon these considerations there appears to me to be an overwhelming case for the plaintiff to be granted leave to deal with the reports for the purpose it proposes, with dispensation from the obligation not to make collateral use of them, if that obligation obtains. Section 23 of the Act does not permit the making of an order for costs against an offender "in relation to any proceedings under this Act". This precludes an order for costs of the present application against the defendant. There would be no justification for the plaintiff being ordered to pay the defendant's costs given that the defendant has failed in his resistance to the plaintiff's application.
Accordingly the order of the court is: 1. Leave is granted to the plaintiff to disclose the reports of Dr Anthony Samuels dated 10 and 24 November 2009 and of Dr Samson Roberts dated 5 November 2009 (2 reports) to Professor D M Greenburg for use by him as he may see fit in the preparation of a psychiatric assessment of the defendant relative to sentence proceedings in the Local Court.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 November 2015

Crimes (Serious Sex Offenders) Act 2006(NSW)

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