Rohan v R

1. [1]

   HOEBEN CJ at CL: I agree with R A Hulme J.

2. [2]

   WALTON J: I have had the advantage of reading, in draft form, the judgment of R A Hulme J in this matter. I agree with the orders proposed by his Honour and generally his reasons for judgment. There is one matter about which I propose to make some brief remarks.

3. [3]

   In the absence of argument, but with doubt, his Honour applied KS v Veitch (No 2) (2012) 84 NSWLR 172; [2012] NSWCCA 266 (“Veitch No 2”) to sustain a proposition that s 299B operated with respect to an application for leave to issue a subpoena under s 298(1) of the Criminal Procedure Act 1986 (NSW) (his Honour expressed no difficulty with s 299B applying in the case of s 298(2) and (3) where, in contrast to the circumstances applying under s 298(1), documents and evidence were readily available to the Court).

4. [4]

   The matter can await full argument but, having regard to the judgment in Veitch No 2 I do not share those reservations. As Basten JA observed in Veitch No 2 (at [23]), although “the prohibition in subs (1) bites at an early stage”, its primary purpose is to prevent any person other than the persons who are parties to the counselling communication have access to the contents of the document.

5. [5]

   The provisions of s 299B facilitate that purpose and, more generally, the public purpose in protecting such confidentiality as reflected in the provisions of s 299B(4). There is no warrant in reading down the literal scope of that provision. Nor do I perceive a strained logic in the operation of the provision when considered in the light of its purposes.

6. [6]

   R A HULME J: This is an application pursuant to s 5F(3) of the Criminal Appeal Act 1912 (NSW) for leave to appeal against an interlocutory judgment of her Honour Judge Syme in the District Court.

7. [7]

   Orders were made at the conclusion of the hearing of the application in this Court on 30 April 2018. Leave to appeal was granted but the appeal was dismissed. The following are my reasons for joining in the making of such orders.

The proceedings in the District Court

1. [8]

   The applicant was due to undergo a special hearing pursuant to Pt 2 of the Mental Health (Forensic Provisions) Act 1990 (NSW) in respect of allegations that he had sexual intercourse and indecently assaulted his niece in 2008-2009 when she was 8 to 10 years old. The special hearing was listed to commence in the District Court at Sydney on Monday 7 May 2018.

2. [9]

   Identifying the applicant would have a tendency to identify his niece ("the complainant") and so he is referred to in the case title for this judgment by a pseudonym, "Rohan".

3. [10]

   By a notice of motion filed in the District Court on 4 April 2018 the applicant sought leave pursuant to s 298(1) of the Criminal Procedure Act 1986 (NSW) ("the Act") to issue subpoenas to four organisations for the production of documents, "including those recording protected confidences, being counselling communications made by, or to [the complainant] in connection with her allegations of sexual/indecent assault against the accused".

4. [11]

   The application was heard by her Honour Judge Syme on Thursday 19 April 2018 and, after delivering ex tempore reasons, her Honour refused to grant leave for the subpoenas to be issued.

5. [12]

   The Crown has adopted a neutral position in relation to the issue, both in the District Court and in this Court. The complainant has standing to appear (s 299A of the Act) and she has been represented in both Courts.

Background

1. [13]

   The following background to the matter is derived from a statement of the complainant's father, the Crown Case Statement, information provided by the Crown Prosecutor at the hearing before Syme DCJ and further material summarised in the written submissions by senior counsel for the complainant.

2. [14]

   The complainant is the oldest of four female siblings. In May 2011, her oldest sister was interviewed by the Broken Hill Child Abuse Squad in relation to allegations of sexual abuse by the applicant. Police subsequently arranged for her, the complainant and another sibling, to attend "protective behaviours counselling" at the Mallee Sexual Assault and Domestic Violence Service in Mildura. The complainant attended for such counselling for about six months.

3. [15]

   On 8 December 2012, one of the complainant's sisters found a note written by the complainant in which she disclosed a history of sexual assault by the applicant. The sister gave the note to her parents who confronted the complainant about it. (The note is part of the brief of evidence served upon the applicant.) The police were contacted and arrangements were made to take the complainant to the Mildura Sexual Offences and Child Abuse Investigation Team. However, the complainant was not ready to speak to police ("she closed up and wouldn't speak and became very withdrawn") and no interview was conducted at that stage.

4. [16]

   The complainant's parents decided that she should attend further counselling. She initially attended counselling with the Victorian Victims of Crime organisation and was subsequently referred to the Child and Youth Mental Health Service at Mildura Base Hospital. According to her father, she was diagnosed with anxiety. She attended there for about 18 months. She had started to self-harm and "they helped her with strategies with that".

5. [17]

   Towards the end of 2014 the complainant approached her father and told him that she was ready to go to the police. He said, "She said that she felt strong enough to do it". The complainant was interviewed by Victorian police on 28 January 2015. She alleged that the applicant had sexually assaulted her from when she was 3-4 years old until she was about 10-11 years old. She said that before she wrote the note that was found by her sister on 8 December 2012 she had spoken to a friend. She explained why she had written the note:

6. [18]

   The complainant was interviewed by New South Wales police on 31 March 2015. She indicated that sometime in Year 7 she had made a disclosure to a friend. She denied speaking to any adults or counsellors about the allegations. She had told her counsellor that she wanted to speak to the police about it.

The subpoenas

1. [19]

   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. [20]

   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. [21]

   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. [22]

   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. [23]

   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. [24]

   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. [25]

   Section 298 provides:

6. [26]

   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):

7. [27]

   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. [28]

   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. [29]

   Section 299D is the provision governing the granting of leave under Pt 5 Div 2 (that is, the leave referred to in s 298):

10. [30]

    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):

11. [31]

    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. [32]

    In relation to the third limb in s 299D(1)(c), he observed (at [34]):

Submissions to the primary judge

1. [33]

   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. [34]

   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. [35]

   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. [36]

   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. [37]

   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. [38]

   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. [39]

   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. [40]

   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. [41]

   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:

5. [42]

   The essential aspects of her Honour's reasoning then followed:

The application in this Court

1. [43]

   The application in this Court was for leave to appeal based upon eight grounds:

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

1. [44]

   These grounds may be considered together because they concern a single aspect of the judgment.

2. [45]

   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. [46]

   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:

4. [47]

   Later in the judgment, and included in that set out above (at [38]), the judge held that s 299B was irrelevant.

5. [48]

   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. [49]

   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. [50]

   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. [51]

   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.

9. [52]

   Section 299B is in the following terms:

10. [53]

    The heading to the section is misleading. It is not part of the Act: s 35 of the Interpretation Act 1987 (NSW).

11. [54]

    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".

12. [55]

    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.

13. [56]

    Basten JA set out the terms of s 299B in full. He then explained their reach:

14. [57]

    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":

15. [58]

    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.

16. [59]

    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:

17. [60]

    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.

18. [61]

    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]):

19. [62]

    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).

20. [63]

    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.

21. [64]

    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.

22. [65]

    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".

23. [66]

    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.

24. [67]

    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.

25. [68]

    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. [69]

   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. [70]

   This ground had no merit. The Crown did not indicate any acceptance that there was a legitimate forensic purpose for the subpoenas.

2. [71]

   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. [72]

   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. [73]

   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:

2. [74]

   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. [75]

   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.

4. [76]

   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.

5. [77]

   Returning again to KS v Veitch (No 2), Basten JA described s 299D(1)(c) as having the following effect:

6. [78]

   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:

7. [79]

   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. [80]

   This and the following ground were added by leave at the hearing of the application.

2. [81]

   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. [82]

   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. [83]

   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. [84]

   The features of this particular case are:

4. [85]

   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. [86]

   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.

6. [87]

   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).

7. [88]

   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".

8. [89]

   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. [90]

   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.