Jolley v DPP

1. [1]

   By summons filed on 28 July 2020, the plaintiff, Dianne Jolley, appeals part of the decision of Magistrate Giles made on 14 July 2020 at the Downing Centre Local Court in relation to the production of counselling notes. The defendant is Brendan Rawlings, who is the police officer in charge of criminal proceedings brought against Ms Jolley, and the applicant for the subpoena. The Director of Public Prosecutions is conducting the criminal proceedings in relation to which the subpoena was issued and appears on behalf of the defendant in this appeal.

2. [2]

   In written submissions filed on behalf of the DPP on 25 September 2020, the defendant concedes that error is established and the appeal should be allowed.

3. [3]

   I am satisfied that the concession should be accepted.

4. [4]

   Before turning to consider the nature of this appeal and identified error, it is necessary to briefly set out its factual background.

5. [5]

   On 15 November 2019 the plaintiff was charged with a number of offences, namely:

   1. (1)

      An offence contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW) (fraud);

   2. (2)

      An offence contrary to s 93Q(1) of the Crimes Act (conveying false information that a person or property is in danger); and

   3. (3)

      An offence contrary to s 547 B (1) of the Crimes Act (public mischief).

6. [6]

   On 8 January 2020 the plaintiff was charged with a further offence contrary to s 93Q(1) of the Crimes Act.

7. [7]

   On 31 July 2020, the plaintiff was charged with:

   1. (1)

      16 further offences contrary to s 93Q(1) of the Crimes Act; and

   2. (2)

      Three offences contrary to s 93R(1) of the Crimes Act (leaving or sending an article with intent to cause alarm).

8. [8]

   The allegations against the plaintiff are that between 31 July 2019 and 15 November 2019 she was employed as the Dean of the Faculty of Science at the University of Technology (“UTS”) in Sydney. During that time she reported a series of threats to UTS security which led them to spend $157,000 implementing security measures for her protection. Those measures included installing security cameras in her home, paying for a guard at her home as well as the use of a hire car to take her to and from work every day. She also reported the threats to New South Wales Police who conducted an extensive investigation into the threats.

9. [9]

   The Crown case against the plaintiff is that she sent the threatening letters to herself. The additional charges were laid due to the ongoing nature of the alleged conduct.

10. [10]

    On 4 August 2020, one charge under s 93Q(1) was withdrawn and dismissed, and a charge certificate was filed in the Local Court indicating that all of the remaining charges would proceed in the District Court.

11. [11]

    On 24 September 2020, the plaintiff was committed to the District Court for trial in respect of these offences. It is anticipated that a trial will be heard sometime next year.

12. [12]

    Whilst the matter was still in the Local Court, the officer in charge of the investigation, the defendant in these proceedings, issued a subpoena to produce documents upon Ms Amanda Gordon. She is a psychologist at a practice known as “Armchair Psychology”. Ms Gordon practices in Edgecliff. The subpoena required, inter alia, that Ms Gordon produce all invoices for counselling services provided to the plaintiff and all notes made during counselling sessions with the plaintiff. The subpoena was returnable before the Downing Centre Local Court on 8 January 2020. Ms Gordon produced the material to the Court without any objection.

13. [13]

    On 8 January 2020, Registrar Wiseman made an order granting general access to all parties to that material.

14. [14]

    On 15 January 2020, the plaintiff made application that, inter alia, the order for general access be reviewed by a Local Court Magistrate: rule 8.8 of the Local Court Rules 2009 (NSW).

15. [15]

    On 17 January 2020, Magistrate Atkinson stayed the operation of the Registrar’s order and adjourned the matter for hearing.

16. [16]

    The hearing ultimately came before Magistrate Giles on 19 June 2020. Other applications were also listed that day that are not relevant to this appeal.

17. [17]

    The court book I have been provided with shows that eight sets of submissions and a number of affidavits were provided to her Honour. Her Honour had before her an affidavit of the defendant setting out the forensic basis for seeking the subpoena. The applications were heard largely on the papers.

18. [18]

    Her Honour reserved her judgment until 14 July 2020.

19. [19]

    Her Honour delivered her reasons on 14 July 2020. These reasons dealt with all of the matters that were before her Honour but, given this appeal is only against a specified portion of her Honour's decision, it is agreed by the parties that only that portion of the reasons is relevant to my consideration today. Given that they only comprise six paragraphs, I propose to set them out in full:

Nature of the Appeal

1. [20]

   The summons specified that the relevant provision under which this appeal is brought is s 53(3)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) (“CARA”). Appeals from the Local Court to the Supreme Court are governed by Part 5 of the CARA. In particular, s 53 is relevantly in these terms:

2. [21]

   Thus, the statutory prerequisites for this appeal to be brought are that:

   1. (1)

      Leave is required;

   2. (2)

      The order must be an “interlocutory order” made either by a Magistrate in committal proceedings or the Local Court in summary proceedings;

   3. (3)

      The ground must involve “a question of law alone”.

3. [22]

   Although this appeal was initially brought under s 53(3)(b) of the CARA (pertaining to summary proceedings), counsel for the DPP in her written submissions brought to the plaintiff’s attention that the correct provision is in fact s 53(3)(a) of the CARA, given that the proceedings were committal proceedings and the matter is now in the District Court. Following that jurisdictional issue being raised, on 6 October 2020, an amended summons was filed stating that the appeal was brought under s 53(3)(a) of the CARA.

4. [23]

   Dealing with the jurisdictional prerequisites for this appeal, the first question is: does this appeal concern a question of law alone?

5. [24]

   Four grounds of appeal, as set out in the summons, are:

   1. (1)

      Magistrate Giles erred by finding that the test for whether or not the evidence be produced is whether or not the court is satisfied that harm might be caused to the defendant who is the confider and that that harm outweighs the desirability of the evidence being given (at T4.33-36);

   2. (2)

      Magistrate Giles erred by failing to correctly apply s 126B(1)(a) and s 126B(1)(b) of the Evidence Act 1995 NSW;

   3. (3)

      Magistrate Giles erred by failing to correctly apply s 126B(3) of the Evidence Act 1995 NSW;

   4. (4)

      Magistrate Giles erred by failing to correctly apply s 126B(4) of the Evidence Act 1995 NSW.

6. [25]

   In the plaintiff’s summons and written submissions, four“ questions involved” are identified as follows:

   1. (1)

      Can the protected confidence (or documentation of a protected confidence) of the accused made to her treating psychologist be produced to the Prosecutor?

   2. (2)

      Does s 126B(1) provide a test that is separate to, and a preliminary step towards, s 126B(3)?

   3. (3)

      Did Magistrate Giles consider the harm that arises by an Accused person not having confidentiality with his/her healthcare provider?

   4. (4)

      Did Magistrate Giles give appropriate consideration to the matters set out in s 126B(4) of the Evidence Act 1995 NSW?

7. [26]

   I am satisfied that although the first of these four questions involves a question of law alone, the remaining three do not. However, given the concession made by the Crown in this matter, I do not consider it necessary to consider those grounds. The relevant error identified is a failure to apply the correct test and I am satisfied that a failure to do so would be a question of law alone.

8. [27]

   Turning to the question of whether this is an appeal against an interlocutory order, it is noted that that phrase "interlocutory order" is not defined in s 53(3) of the CARA. Despite this, it has been judicially considered on a number of occasions. The same statutory language is used in s 5F of the Criminal Appeal Act 1912 (NSW), and it has been held that the principles derived from decisions concerning that provision are applicable in the context of s 53(3) of CARA. I do not consider it necessary to set out all of those cases, but suffice it to say, the question has been considered in decisions of the Court of Criminal Appeal in R v Steffan (1993) 30 NSWLR 633, Salter v Director of Public Prosecutions (NSW) (2009) 75 NSWLR 392; [2009] NSWCA 357 and AF v R [2015] NSWCCA 35. I have previously summarised the relevant principles in these decisions in Russell v Scott & Anor [2017] NSWSC 1720 at [53]-[57].

9. [28]

   In the written submissions filed on behalf of the Director it was accepted that this Court has proceeded on the basis that a decision by a Magistrate to set aside a subpoena or refuse access to subpoenaed material constitutes an interlocutory order: Fantakis v Local Court of New South Wales [2020] NSWSC 931, Franklin v Commissioner of Police and Anor [2018] NSWSC 310, Feeney v New South Wales Police [2016] NSWSC 1708 and Mackintosh v The Commissioner of Police (NSW) and Ors [2010] NSWSC 1064.

10. [29]

    It was also acknowledged by counsel for the Director that this Court has proceeded on the basis that objections to the production of documents in answer to a subpoena fall within the scope of s 5F of the Criminal Appeal Act. These decisions include Director of Public Prosecutions (Cth) v Kinghorn; Kinghorn v Director of Public Prosecutions (Cth) (2020) 279 ALR 345; [2020] NSWCCA 48; Osborne v R (2014) 238 A Crim R 417; [2014] NSWCCA 17, Attorney-General v Lipton (2012) 224 A Crim R 177; [2012] NSWCCA 156, Attorney-General v Chidgey (2008) 182 A Crim R 536; [2008] NSWCCA 65 and Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667.

11. [30]

    Although the Director acknowledged the distinction between a decision which requires a person to produce material in compliance with a subpoena and a decision which merely grants the parties access to inspect material that has already been produced, it was accepted that a decision granting access to inspect material does constitute a relevant order for the purpose of s 53 of CARA. As Rothman J observed in PPC v Stylianou [2018] NSWCCA 300 at [57]:

12. [31]

    For these reasons, I am satisfied that the Magistrate's order is one that is amenable to an application for leave to appeal under s 53. Given that the Crown concedes error which involves a question of law alone, it is also appropriate that leave be granted in this matter. I am also satisfied, on the basis of the procedural history I have already set out, that the interlocutory order pertained to a decision by a Magistrate in committal proceedings.

13. [32]

    Before turning to provide my reasons for accepting the concession in this appeal, it is pertinent to first note the terms of s 126B of the Evidence Act. It is in these terms:

14. [33]

    As the language of that provision makes clear, it is concerned with the “adducing” of evidence in a proceeding. Section 131A of the Evidence Act extends the application of s 126B in a limited respect. That provision is as follows:

Consideration

1. [34]

   The appeal brought by the plaintiff in this matter alleged error in the manner in which her Honour considered s 126B of the Evidence Act. The specific errors are those identified in the grounds of appeal in the amended summons. Despite the terms of s 131A of the Evidence Act, which extends the application of s 126B to a “party who objects to production”, it was submitted on behalf of the plaintiff that she should be considered a producing party for the purposes of s 131A. Thus, although counsel for the plaintiff accepted the Crown's concession that error has been established, she nonetheless maintained that the relevant provision was s 126B of the Evidence Act rather than the common law.

2. [35]

   The basis for adhering to this position is two-fold. First, on the plaintiff's instructions, there was objection to the production of the material by Armchair Psychology. Secondly, it was submitted that the law in this area is unclear, and there is sufficient ambiguity to suggest that s 126B of the Evidence Act is applicable on a factual basis such as this matter.

3. [36]

   Turning to the first of these arguments, there is no evidence to support the argument that Ms Gordon did object to the material. She produced the material and access was granted. Had there been an objection on the file, a different process would have been followed. Secondly, the learned Magistrate made a finding in her reasons that there had been no objection.

4. [37]

   The second basis of the plaintiff’s argument was that it is unclear whether s 131A of the Evidence Act applies in a case such as this, given it is the plaintiff who wishes to object and she was not provided with notice that the subpoena would be issued. I have had regard to that submission and am unable to accept it. The reason I am unable to accept that the plaintiff could be considered a producing party is the clear statutory language of s 131A of the Evidence Act. The producing party was Ms Amanda Gordon and she made no objection to the notes being produced to the Local Court.

5. [38]

   I have already extracted the reasons of the learned Magistrate above. It is clear that the language used by her Honour was to use a weighing test as set out in s 126B. Although it is somewhat unclear what the parties put to her Honour as to the applicable test, her Honour appears to have applied the s 126B test in relation to the aspect of the application before the Court today, but gone on later in her reasons to note the provision of s 131A and also the common law test in National Employers' Mutual General Insurance Association Ltd v Waind and Hill (1978) 1 NSWLR 372. Her Honour noted in that part of the reasons, which do not form any part of the appeal before me, that she had been advised of s 131A and the common law test in submissions before her on the application. Counsel appearing for the Director identified those submissions for the Court and it is not in fact clear where in them her Honour was advised of that.

6. [39]

   As I have already indicated, both parties proceeded on the basis that I would not have regard to other portions of her Honour's reasons that did not concern this discrete argument. Although it is somewhat curious that her Honour applied the correct test elsewhere but not in relation to the aspect subject to argument, that fact does not bear upon the question of error in relation to the aspect of the application before the Court today. I say that with no disrespect to her Honour; she was dealing with a large number of submissions and applications at that time.

7. [40]

   In circumstances where I am satisfied that s 126B of the Evidence Act did not apply to the application before her Honour, the test therefore was the common law test as set out in National Employers' Mutual General Association Limited v Waind and Hill. In particular, Moffitt P held (at 384-385) that:

8. [41]

   As this judgment of his Honour makes clear, the crucial test in relation to the discretion whether to permit inspection is apparent relevance to the issues. I am satisfied that that is the appropriate test for seeking access at common law where it is submitted that access should not be granted based upon the material being a protected confidence.

9. [42]

   Section 131A of the Evidence Act was not enacted until after 1995. Prior to its enactment, the court observed on a number of occasions that s 126B is of indirect relevance to the exercise of the court's discretion in determining whether to grant access to documents produced on subpoena at common law. Campbell J made observations to this effect Urquhart v Lanham [2003] NSWSC 109 at [15] as follows:

10. [43]

    Similarly, in Director-General, Dept of Community Services v D (2006) 66 NSWLR 582; [2006] NSWSC 827 at [17], Brereton J observed that:

11. [44]

    The concession made by the Crown in this matter was two-fold. It was conceded that her Honour should have applied the common law test but instead applied the statutory test. That is the first aspect of the concession. The second aspect of the concession is what her Honour actually found as to the relevance of the material produced.

12. [45]

    I have already set out her Honour's reasons above. Her Honour noted that the notes were “not very probative of anything”, and “not terribly probative of anything other than being a consistent statement”, meaning consistent with what the plaintiff told police. As counsel for the Director pointed out in her submissions, the difficulty with this finding is: just because the notes are consistent with the plaintiff feeling sad and stressed does not mean they are not relevant when assessed in the context of the case overall.

13. [46]

    To this extent it was conceded that her Honour did not apply the test of relevance as against all of the issues at trial. I have had regard to that submission. It was one properly made, and it is the second basis upon which I am satisfied that error is disclosed in this matter.

14. [47]

    For these reasons, I am satisfied it is appropriate to make the orders sought today. Short minutes of order have been provided to the Court, and I propose to make those orders now.

ORDERS

1. [48]

   Accordingly, I make the following orders:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Appeal allowed.

   3. (3)

      Set aside Magistrate Giles’ order made on 14 July 2020 granting access to notes produced by Amanda Gordon of Armchair Psychology in response to the subpoena issued by Detective Rawling and first returned on 8 January 2020.

   4. (4)

      No order as to costs.