Supreme Court New South Wales

• Medium Neutral Citation: X v Commissioner of Police [2012] NSWSC 930
• Hearing dates: 10 August 2012
• Decision date: 13 August 2012
• Before: Johnson J

Decision

The Plaintiff's application for an interim stay of the criminal proceedings against him listed before the [xxx] Children's Court on [xxx] 2012 is declined.

The Plaintiff's application for urgent permanent restraint with respect to the issuing of search warrants is declined;

The Plaintiff's Notice to Produce directed to the Defendant dated 1 August 2012 is set aside.

• Catchwords: CRIMINAL LAW - criminal proceedings commenced in Children's Court - committal proceedings for sexual assault offences - application in Supreme Court to stay prosecution as abuse of process - claim for interim stay of criminal proceedings - applicable principles - complaint to police concerning offences in 2009 - police determine not to investigate further - plaintiff so informed - plaintiff then undertakes counselling with psychotherapist - police obtain under search warrant in 2012 psychotherapist's records of treatment of plaintiff arising from alleged offences - police charge plaintiff - relevance of professional confidential relationship privilege under ss.126A-126B Evidence Act 1995 - criminal proceedings to be taken over by Director of Public Prosecutions - remedies available to plaintiff in criminal courts - interim stay declined - application for permanent restraining order preventing police from obtaining search warrants to obtain information from other treating health professionals - application declined
• Legislation Cited: Crimes Act 1900; Court Suppression and Non-Publication Orders Act 2010; Civil Procedure Act 2005; Children (Criminal Proceedings) Act 1987; Law Enforcement (Powers and Responsibilities) Act 2002; Supreme Court Act 1970; Evidence Act 1995
• Cases Cited: Cooke v Purcell (1988) 14 NSWLR 51; Jago v District Court (NSW) [1989] HCA 46; 168 CLR 23; Williams v Spautz [1992] HCA 34; 174 CLR 509; The Queen v Carroll [2002] HCA 55; 213 CLR 635; R v Petroulias (No. 1) [2006] NSWSC 788; 177 A Crim R 153; Island Maritime Ltd v Filipowski [2006] HCA 30; 226 CLR 328; Federal Commissioner of Taxation v Citibank Ltd (1989) 85 ALR 588; R v Young [1999] NSWCCA 166; 46 NSWLR 681; Wilson v State of New South Wales [2003] NSWSC 805; Director-General Department of Community Services v D [2006] NSWSC 827; 66 NSWLR 582; Nolan v Curby (Court of Appeal, unreported, 20 December 1995, BC9506818); JD v Director of Public Prosecutions (Black AJ, unreported, 27 March 1998, BC9807909); Grassby v The Queen [1989] HCA 45; 168 CLR 1; Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129; Reid v Howard [1995] HCA 40; 184 CLR 1; Question of Law Reserved (No. 1) of 1998 (1998) 70 SASR 281
• Texts Cited: ---
• Category: Interlocutory applications
• Parties: X (Plaintiff); Commissioner of Police (Defendant)
• Representation: Counsel: Mr WG Roser SC; Mr SA Goodman (Plaintiff); Mr D Kell (Defendant); Solicitors: Holding Redlich (Plaintiff); Crown Solicitors Office (Defendant)
• File Number(s): 2012/238908
• Publication restriction: Parts of this judgment which serve to identify the Plaintiff or victim, directly or indirectly, have been deleted, including names of a psychotherapist and police officers who were mentioned in the limited evidence adduced at the urgent interlocutory hearing

Judgment

1 JOHNSON J: By Summons filed 1 August 2012, the Plaintiff, X, seeks relief against the Defendant, the Commissioner of Police, arising from charges being laid against the Plaintiff in the form of five counts of having sexual intercourse with a child under the age of 10 years, contrary to s.66A(1) Crimes Act 1900.

2 On 1 June 2012, Court Attendance Notices were issued against the Plaintiff alleging that on five occasions in October 2009, he (then aged 15 years) had sexual intercourse with the complainant (his second cousin), then aged eight years. The Court Attendance Notices are first returnable before the [xxx] Children's Court at 9.30 am [xxx] 2012.

Proceedings in this Court

3 The Plaintiff is now 18 years of age and the present proceedings are brought by him personally.

4 On 1 August 2012, an ex parte application was made to the Common Law Duty Judge, Fullerton J, for short service of the Plaintiff's Summons and other interlocutory orders, including orders under ss.7 and 8(d) Court Suppression and Non-Publication Orders Act 2010 prohibiting publication of the name of the Plaintiff and the complainant, and limiting access to affidavits relied upon by the Plaintiff in support of that application. Fullerton J made orders as sought. The Summons was made returnable before the Common Law Duty Judge on 6 August 2012 with a Notice to Produce directed to the Defendant and a subpoena directed to [A] [X's psychotherapist] being made returnable at that time.

5 The proceedings came before me as Common Law Duty Judge on 6 August 2012. Given the subject matter of the proceedings and the orders previously made by Fullerton J, I acceded to an application by the Plaintiff that the interlocutory hearing before me proceed in the absence or the public: s.71(b), (c) Civil Procedure Act 2005. I considered this course to be appropriate given the subject matter of the proceedings and the fact that the hearing related to criminal proceedings in the Children's Court as to which there would be restrictions concerning the presence of the public: s.10 Children (Criminal Proceedings) Act 1987.

6 On 6 August 2012, I fixed for hearing before me on 10 August 2012 three aspects of the litigation, being:

(a) the Plaintiff's claim for an interim stay of the criminal proceedings before the Children's Court pending the final determination of the Plaintiff's claim for a permanent stay of the proceedings (paragraph 1 under the heading "Interlocutory Relief" in the Summons);

(b) the Plaintiff's claim for a permanent restraining order preventing police officers, in effect, from seeking a search warrant directed to obtaining from a health professional information concerning therapy which the Plaintiff may have arising from the events giving rise to the charges against him (paragraph 1 under the heading "Urgent Permanent Restraint" in the Summons);

(c) the Plaintiff's claim for interlocutory relief requiring that the Defendant forthwith deliver into the possession of the Court, and have no further access to, all documents subject to the Notice to Produce dated 1 August 2012 (MFI 4), together with an order that the Plaintiff be entitled to have access to the documents so produced (paragraphs 2 and 3 under the heading "Interlocutory Relief" in the Summons), together with the Defendant's Notice of Motion filed 6 August 2012 seeking that the Plaintiff's Notice to Produce be set aside.

7 On 6 August 2012, [A] appeared in person in answer to the Subpoena to Produce directed to him (MFI 1) and produced to the Court several bundles of documents (MFIs 2, 3 and 5). [A] did not object to the parties having access to the documents produced by him on subpoena. The Plaintiff was granted photocopy access to MFIs 2, 3 and 5. Given the issues in the proceedings, the Defendant did not seek access to the documents produced by [A] on subpoena at that time. I directed that the documents which comprise MFIs 2, 3 and 5 be placed in sealed envelopes, not to be opened without an order of a Judge of the Court.

8 The interlocutory hearing proceeded before me on 10 August 2012, once again in closed court. Mr Roser SC and Mr Goodman of counsel appeared for the Plaintiff. Mr Kell of counsel appeared for the Defendant. Counsel had furnished detailed written submissions with respect to the issues falling for determination at the interlocutory hearing.

9 The following affidavits were read in the Plaintiff's case:

(a) an affidavit of the Plaintiff's father sworn 31 July 2012;

(b) an affidavit of the Plaintiff's mother sworn 31 July 2012;

(c) an affidavit of Nicholas Daniel Riordan, the Plaintiff's solicitor, affirmed 31 July 2012.

10 In addition, the Plaintiff tendered certain documents which included a copy of the Occupier's Notice dated 19 April 2012 with respect to the execution of a search warrant at the premises of [A] in [xxx], Sydney (Exhibit A).

11 Objection was taken by Mr Kell to the last sentence in paragraph 25 of the affidavit of the Plaintiff's father, together with the whole of paragraphs 26 and 28 of that affidavit. These parts of the affidavit concerned certain conversations between the Plaintiff's father and [A]. Mr Roser SC informed the Court that he sought to rely upon this material only as evidence that such conversations had taken place and not as evidence of the truth of the facts asserted in the conversations.

12 The Defendant did not adduce any evidence at the interlocutory hearing. Counsel addressed and I adjourned the hearing until this afternoon, 13 August 2012, for decision.

 

Factual Background

13 What follows is drawn from the affidavits before the Court on this application. It does not purport to be an exhaustive recital of the contents of those affidavits. Rather, attention is confined to matters which appear most pertinent to the issues which I must resolve at this interlocutory hearing.

14 The Plaintiff was born in [xxx]. In October 2009, when the Plaintiff was 15 years' old, there was some contact between the Plaintiff's family and that of [the complainant].

15 In October 2009, the father of the complainant (then eight years' old) made contact with the Plaintiff's mother indicating that the complainant alleged that the Plaintiff had "touched her" at a social occasion shortly prior to then.

16 It appears that a report was made to police. In due course, a police officer, either Constable [B] or Constable [C] of the [xxx] Joint Investigation Response Team ("[xxx] JIRT") made contact with the Plaintiff's father. According to the Plaintiff's father, at a later time, either Constable [B] or Constable [C] contacted him by telephone and indicated that the "police will not be proceeding with the investigation in relation to the complaint" against the Plaintiff, but that the "complaint will remain on file, but no further action will be taken on it by JIRT" but that, "if another similar complaint is made about [the Plaintiff] in the future, the matters on this file may be used as evidence in their future investigation". According to the Plaintiff's father, he had a conversation with the officer about counselling for the Plaintiff in which the father made clear that he was intending to obtain therapy for the Plaintiff, and he sought a recommendation from the officer as to a therapist who specialised in this area. The police officer agreed with the suggestion that therapy should be obtained, but indicated that she could not make any recommendations.

17 Thereafter, the Plaintiff's parents arranged for him to undertake therapy with [A], a psychotherapist. This therapy commenced in late 2009 and continued into 2011. The affidavits of the Plaintiff's parents outline their understanding of the therapy provided to the Plaintiff and their own contact with [A] between 2009 and 2011. It appears that the Plaintiff was referred for treatment to other health professionals in this period as well.

18 According to the Plaintiff's father, there was some tension between the Plaintiff and [A] in 2011. The Plaintiff was seeing a forensic psychiatrist in 2011 as well. As the Plaintiff was to undertake his Higher School Certificate examination in 2012, it appears that the view was formed that therapy would cease so as to reduce the pressures on the Plaintiff in the context of his studies.

19 It appears that, prior to 19 April 2012, police reactivated the investigation of the offences allegedly committed by the Plaintiff in October 2009.

20 On 19 April 2012, Senior Constable [D] of [xxx] JIRT obtained a search warrant under the Law Enforcement (Powers and Responsibilities) Act 2002 ("LEPRA Act") for the purpose of searching the [xxx], Sydney office of [A] for "clinical files, progress notes, record of attendance relating to [the Plaintiff] who was a client from approximately November 2009 to late 2011" (Exhibit A).

21 In the course of a conversation on 29 June 2012 between Mr Riordan and [A], it is said that [A] stated that police had contacted [A] on 29 March 2012 to enquire whether he was still treating the Plaintiff. [A] told police that he wished to obtain ethical advice from his professional body, and that he obtained advice that he could not divulge the contents of his discussions with the Plaintiff as they remained confidential. In the same conversation, [A] told Mr Riordan that police later contacted him concerning a search warrant, and [A] obtained advice from his professional body that he should co-operate with the police. He provided a copy of the documents to police under the search warrant and retained his original documents.

22 The evidence indicates that the search warrant was executed at [A's] office on Sunday, 22 April 2012.

23 On 23 April 2012, the Plaintiff's father received a voicemail from Senior Constable [D] asking him to call her and he made contact accordingly. According to the Plaintiff's father, Senior Constable [D] informed him that the complainant's family had requested that the 2009 complaint be reopened and that police had been gathering evidence and police were now in a position to charge the Plaintiff with five counts of aggravated sexual assault. Senior Constable [D] indicated that police would like to obtain a statement from the Plaintiff. The Plaintiff's father responded that legal advice would be obtained and that no statement would be given in the meantime.

24 Thereafter, the Plaintiff's father contacted his solicitor. It appears that the Plaintiff has exercised his right not to be interviewed by police.

25 On 1 June 2012, the Court Attendance Notices already mentioned were filed and those Notices were served on the Plaintiff's solicitor on 13 June 2012.

26 I should mention that the parts of the affidavit of the Plaintiff's father to which objection was taken (see [11] above), contained a conversation said to have taken place during a session with [A] attended by the Plaintiff's parents. The Plaintiff's father states that, in the course of one of these sessions, [A] said words to the effect "It is a police condition that [the Plaintiff] remains in therapy in order for the charge not to proceed". I have mentioned earlier that this evidence was not relied upon by the Plaintiff as evidence of the truth of the facts asserted in it.

27 Further correspondence passed between the Plaintiff's solicitors and the police, culminating in the commencement of proceedings in this Court on 1 August 2012.

28 There is evidence in the affidavits of the Plaintiff's parents concerning the Plaintiff's mental health since the events of April 2012, and his unwillingness to undertake any other therapy concerning the subject matter of these charges unless there is some assurance that what he tells any therapist will remain confidential. This evidence is relied upon by the Plaintiff in support of the second order which is sought to which I will return later in this judgment.

The Plaintiff's Claim for an Interim Stay of the Criminal Proceedings

29 As I have said, detailed written submissions have been filed by counsel for the Plaintiff and the Defendant. For the purpose of determining this urgent application, it is not necessary to recite the various arguments advanced on behalf of the parties. It is sufficient for the Court to move directly to the Court's determination on the issues in dispute.

30 It is open to this Court to stay a criminal prosecution in the Children's Court on the grounds of abuse of process. The inherent jurisdiction of this Court is available and has been exercised in the context of committal proceedings, a Magistrate having no power to permanently stay an indictable prosecution as an abuse of process: s.23 Supreme Court Act 1970; Cooke v Purcell (1988) 14 NSWLR 51; Grassby v The Queen [1989] HCA 45; 168 CLR 1 at 13-18; Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129 at 135-138.

31 It is common ground that the charges brought against the Plaintiff are purely indictable so that the Children's Court will proceed by way of committal proceedings: see the definition of "serious children's indictable offence" in ss.3(1) and 28(1) Children (Criminal Proceedings) Act 1987.

32 The stay of criminal proceedings is regarded as an exceptional remedy even where the trial court is being asked to grant such relief: Jago v District Court (NSW) [1989] HCA 46; 168 CLR 23 at 31. The power is exercisable only in exceptional cases or sparingly and with the utmost caution: Jago v District Court (NSW) at 76. The onus of satisfying the Court that there is an abuse of process lies upon the party alleging it and the onus is a heavy one: Williams v Spautz [1992] HCA 34; 174 CLR 509 at 529.

33 The circumstances that may constitute oppression or an abuse of process are various and the discretionary considerations that may be relevant in dealing with them cannot be rigidly confined: The Queen v Carroll [2002] HCA 55; 213 CLR 635 at 650-651 [47].

34 The availability of prosecutorial discretion is an important factor in explaining why a stay of criminal proceedings is most exceptional and why courts are reluctant to interfere with the exercise of such discretion: R v Petroulias (No. 1) [2006] NSWSC 788; 177 A Crim R 153 at 174-175 [65]ff.

35 There is a high public interest in having allegations of serious crime disposed of, one way or the other, on the merits: Island Maritime Ltd v Filipowski [2006] HCA 30; 226 CLR 328 at 340-341 [32].

36 For the purpose of determining whether this Court should grant an interim stay of the criminal proceedings to remain on foot until the final determination of the stay application in this Court, it is necessary to consider what will occur, and what will be open to the Plaintiff, if no such order is made.

37 Given the nature of the charges, the proceedings will be taken over in the Children's Court by the Director of Public Prosecutions. Thereafter, it will be the Director of Public Prosecutions and his officers who will be in a position to determine the course which is to be taken with the prosecution. It would be open to the legal representatives for the Plaintiff to make representations to the Director of Public Prosecutions concerning the question whether the criminal proceedings should remain on foot having regard to relevant features of the proceedings, including any public interest factors which are applicable.

38 If an interim stay is not granted in this Court, it may be expected that the Children's Court will [xxx] give directions for the prosecution to serve its brief of evidence upon the legal representatives for the Plaintiff. This step will reveal the extent to which the prosecution depends upon any statements allegedly made by the Plaintiff to [A] in the course of therapy, and the extent to which there is other evidence in support of the charges beyond anything allegedly said by the Plaintiff to [A].

39 It is the case that a Magistrate in committal proceedings may not exclude evidence on any of the grounds set out in s.90 or ss.135-138 Evidence Act 1995: s.70 Criminal Procedure Act 1986.

40 However, the rules of evidence apply otherwise at committal proceedings. It will be open to the Plaintiff to object to any evidence said to have arisen from his therapy with [A] which falls within s.126A Evidence Act 1995 and is susceptible to objection under s.126B of that Act, which provides as follows:

"126B Exclusion of evidence of protected confidences

(1) The court may direct that evidence not be adduced in a proceeding if the court finds that adducing it would disclose:

(a) a protected confidence, or

(b) the contents of a document recording a protected confidence, or

(c) protected identity information.

(2) The court may give such a direction:

(a) on its own initiative, or

(b) on the application of the protected confider or confidant concerned (whether or not either is a party).

(3) The court must give such a direction if it is satisfied that:

(a) it is likely that harm would or might be caused (whether directly or indirectly) to a protected confider if the evidence is adduced, and

(b) the nature and extent of the harm outweighs the desirability of the evidence being given.

(4) Without limiting the matters that the court may take into account for the purposes of this section, it is to take into account the following matters:

(a) the probative value of the evidence in the proceeding,

(b) the importance of the evidence in the proceeding,

(c) the nature and gravity of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding,

(d) the availability of any other evidence concerning the matters to which the protected confidence or protected identity information relates,

(e) the likely effect of adducing evidence of the protected confidence or protected identity information, including the likelihood of harm, and the nature and extent of harm that would be caused to the protected confider,

(f) the means (including any ancillary orders that may be made under section 126E) available to the court to limit the harm or extent of the harm that is likely to be caused if evidence of the protected confidence or the protected identity information is disclosed,

(g) if the proceeding is a criminal proceeding - whether the party seeking to adduce evidence of the protected confidence or protected identity information is a defendant or the prosecutor,

(h) whether the substance of the protected confidence or the protected identity information has already been disclosed by the protected confider or any other person,

(i) the public interest in preserving the confidentiality of protected confidences,

(j) the public interest in preserving the confidentiality of protected identity information.

(5) The court must state its reasons for giving or refusing to give a direction under this section."

41 If that evidence is excluded, it will then be for the Magistrate to determine whether there is a prima facie case based upon other evidence and, if so, whether the Plaintiff ought be committed for trial: ss.62-66 Criminal Procedure Act 1986.

42 If the Plaintiff was committed for trial and a bill of indictment was found, then it will be open to the Plaintiff to make application to the District Court for a stay of the criminal prosecution on the grounds of abuse of process if he sees fit. The District Court would also have powers to exclude evidence under ss.90 and 135-138 Evidence Act 1995 which are not available to a Magistrate in committal proceedings.

43 It will remain open to the Plaintiff to make representations to the Director of Public Prosecutions not to proceed with any prosecution at each of these different stages of the criminal justice system.

44 Mr Roser SC contended that this Court should intervene at this stage by way of an interim stay upon the basis that there is a strong argument that the prosecution constitutes an abuse of process. He submitted that this Court could consider the operation of ss.126A and s.126B Evidence Act 1995 on the stay application. Further, he submitted that this Court should allow the application to go forward and be determined in this Court. He submitted that the abuse of process claim was based upon suggested wrongdoing on the part of police officers. He submitted that, after an indication in late 2009 that no prosecution was to be brought and the police being informed that the Plaintiff was to receive therapy, the police thereafter in 2012 obtained records of that therapy which have then been used in deciding to prosecute the Plaintiff. He submitted as well that there may be information obtained derivatively by police from the execution of the search warrant on [A's] office which may be used by police to further the prosecution apart from the actual records of communications themselves.

45 The evidence before the Court at this time indicates that there was an earlier police investigation in 2009 and a decision not to investigate further. It was the Plaintiff's father who informed police that therapy would be obtained. Police did not become involved in the process of nominating a particular therapist. Thereafter, in a manner not disclosed, police have learned that [A] had been providing therapy and have executed a search warrant on his office, thereby obtaining treatment records.

46 Mr Roser SC sought to draw an analogy with search warrant cases where issues of legal professional privilege are raised. He referred, in particular, to Federal Commissioner of Taxation v Citibank Ltd (1989) 85 ALR 588 at 600-602 and Question of Law Reserved (No. 1) of 1998 (1998) 70 SASR 281 at 299. He submitted that this Court should grant an interim stay of the criminal prosecution and proceed in a manner similar to a search warrant case by bringing the documents into court to allow a decision to be made as to whether a claim for privilege should be upheld. In a similar way, he submitted that the Court should take control of the documents to allow an assessment to be made as to whether a claim of privilege in accordance with s.126A-126B Evidence Act 1995 should be upheld.

47 I have considerable difficulty with this proposition. Unlike legal professional privilege, there is no common law privilege attaching to communications between patient and therapist: R v Young [1999] NSWCCA 166; 46 NSWLR 681 at 698-700 [85]-[98]; Wilson v State of New South Wales [2003] NSWSC 805 at [18]; Director-General Department of Community Services v D [2006] NSWSC 827; 66 NSWLR 582 at 590 [23]. The mechanism contained in s.126A-126B requires a court, in the context of a decision as to whether evidence ought be admitted, to undertake a balancing exercise in the context of the hearing then underway. It is true that these provisions of the Evidence Act 1995 are capable of being invoked at other interlocutory stages, such as where application is made for inspection of documents produced on subpoena. However, I do not think that these scenarios provide any assistance to the Plaintiff on the present application.

48 It is appropriate at this point to note the final orders sought in the Summons filed 1 August 2012. They are, in summary, as follows:

(a) a declaration that the communications made during the Plaintiff's relationship as patient/client with [A] from 1 August 2009 until 30 July 2012 are protected confidences as defined in s.126A Evidence Act 1995;

(b) a direction pursuant to s.126B of that Act that the Defendant cannot adduce evidence in any proceeding which would disclose those communications and the content of any document recording any of those communications;

(c) a direction that the documents sought by the Notice to Produce be delivered to the Court and into the possession of the Plaintiff;

(d) an order that the Defendant be permanently restrained from:

(i) issuing any search warrant,

(ii) employing any other process, including judicial, quasi-judicial or non-judicial, or

(iii) otherwise taking any steps, including by way of interviewing persons,

to obtain any information contained in, arising from or in relation to any of the documents the subject of the Notice to Produce,

(e) that the criminal proceedings initiated by the Court Attendances Notices be permanently stayed;

(f) the Defendant pay the Plaintiff's costs.

49 The Plaintiff's Summons does not contain any challenge to the search warrant itself or to its execution. However, a number of submissions made for the Plaintiff moved into these areas. As Mr Kell submitted, there is no claim for relief by the Plaintiff which seeks to set aside the search warrant or its execution.

50 I consider it appropriate to determine the present application by reference to the relief sought in the Summons. The Plaintiff seeks an interim and ultimately, a permanent stay of the criminal prosecution against him.

51 It is necessary for this Court to be cautious before embarking upon a process, by way of an interim stay, where it takes over from the criminal courts the question whether evidence ought be admitted in criminal proceedings or whether, if the criminal prosecution is maintained in the criminal courts, the prosecution should be stayed as an abuse of process.

52 In Nolan v Curby (Court of Appeal, unreported, 20 December 1995, BC9506818), Clarke JA (Powell and Cole JJA agreeing) observed (at pages 9-10) that it is for the criminal courts to exercise the control necessary to prevent an abuse of their processes, and that it would only be in extraordinary circumstances that this Court would interfere where there are adequate remedies in the criminal courts themselves.

53 Clarke JA approached the question as to whether an interim stay of a criminal prosecution ought be granted upon the basis that it was for the person seeking such an order "to show that there is, at least, a reasonable prospect or probability of success in the final proceedings" (at page 12). In considering that question, his Honour said (at pages 11-13) that a most important consideration was the availability of relief in the criminal courts including the exercise of any prosecutorial discretion by the Director of Public Prosecutions, any application to be made in the course of committal proceedings with respect to objections to evidence and, if committed for trial, any application to be made to the District Court to exclude evidence or stay the prosecution as an abuse of process.

54 It was contended in Nolan v Curby that the person charged "should be spared the expense of a committal and trial ... because the proceedings are in truth an abuse", but Clarke JA observed (at page 13) that such an argument was not "persuasive when what is sought is that a civil court disrupt the normal criminal processes in a case in which it has not been shown that the criminal courts cannot provide adequate relief".

55 Clarke JA concluded (at pages 13-14):

"In my opinion the appellant has failed to demonstrate that there is a probability or reasonable chance of success in the final hearing and for this reason the application for leave to appeal should be dismissed. In saying that I do not wish to be thought to be passing judgment on the facts of the case. My conclusion is based solely on the fact that the strong probability is that the court conducting the final hearing will decide that this is not an exceptional case and not one in which the court should intervene. There is, accordingly, little chance that final relief will be granted in the civil courts and for this reason interlocutory relief should be refused."

56 The principles stated in Nolan v Curby were applied by this Court in JD v Director of Public Prosecutions (Black AJ, unreported, 27 March 1998, BC9807909).

57 I will adopt the approach taken in Nolan v Curby in determining the question whether the Plaintiff should obtain an interim stay of the criminal prosecution against him pending the final determination of a stay application in this Court. Having done so, I am not persuaded that a proper basis has been demonstrated for an interim stay.

58 As Clarke JA observed in Nolan v Curby, I do not wish to be thought to be passing judgment on the facts of the present case. Rather, my conclusion is based upon the availability of other measures of the type identified in Nolan v Curby and of my view that the Plaintiff has not demonstrated a sufficiently strong case that an interim stay should be granted in this Court.

Application for Permanent Restraint from Executing Search Warrants Upon Health Professionals Concerning the Subject Matter of the Charges Against the Plaintiff

59 I have mentioned earlier in this judgment the Plaintiff's application for an order which is said to be required to facilitate the provision of necessary therapy and medical advice and treatment for the Plaintiff. It is submitted for the Plaintiff that such assistance is urgently needed given his general health and in the context of his preparations for the Higher School Certificate.

60 Each of the Plaintiff's parents have expressed considerable concern about his current health and the consequences of his unwillingness to obtain appropriate medical assistance without some assurance that the police would not seek to execute a search warrant upon some other health professional with respect to the subject matter of these charges.

61 There is an indication that the Plaintiff may be at risk of self-harm in the circumstances which presently prevail.

62 Mr Roser SC acknowledged that the claim for relief under this heading as sought originally in the Summons was unduly wide. The claim as pressed is for an order in the following terms (paragraph 1, MFI 6):

"The Defendant is permanently restrained from executing any search warrant upon or otherwise taking any steps to obtain information from any psychologist, psychiatrist, psychotherapist, physician or medical practitioner:

(a) with whom the plaintiff has obtained therapy on or after the date of this Order in respect of any of the allegations the subject of Court Attendance Notice [xxx]; and

(b) where the subject matter of the search warrant or information sought is or involves the plaintiff and/or his communications with such psychologist, psychiatrist, psychotherapist, physician or medical practitioner."

63 It was submitted for the Plaintiff that an order in these terms is appropriate as the Plaintiff is "in dire need of urgent therapy". Mr Roser SC could not point to any authority where a court had permanently restrained police officers from seeking to obtain a search warrant to investigate suspected crime. He submitted, however, that in the circumstances of the present case, this Court should exercise its inherent jurisdiction under s.23 Supreme Court Act 1970 to make an order as sought as it was in the public interest, as well as the interests of the Plaintiff, for him to obtain medical treatment in circumstances where, on the evidence, he will not seek it without protection of this sort.

64 Mr Roser SC submitted that it could not be expected that, in circumstances where the police had already executed the search warrant upon [A's] office and obtained evidence, the police would need to obtain evidence by executing a search warrant on the office of some other health professional.

65 Mr Roser SC noted as well that the police were not prepared to give an undertaking not to take steps of this type.

66 He submitted that the balance of convenience strongly favoured the making of the order sought.

67 Mr Kell submitted that the order as sought should not be made. He submitted that an order permanently restraining police from seeking a search warrant to investigate particular alleged crime would be extraordinary and that no authority had been cited in support of the relief. Even the order in its amended form, he submitted, was unclear in various respects and this was a further reason for it not to be made. Mr Kell submitted as well that the power to issue a search warrant under the LEPRA Act lay with the relevant Justice exercising statutory functions and that this Court should not make a permanent order preventing the police from even making such an application.

68 I have real concerns that this Court may make an order permanently restraining police officers from applying for a search warrant with respect to a particular class of persons and a nominated area of alleged offences. The Plaintiff has cited no authority in support of the making of an order of this type. The inherent power and the jurisdiction conferred by s.23 Supreme Court Act 1970 are to be exercised only as necessary for the administration of justice: Reid v Howard [1995] HCA 40; 184 CLR 1 at 17.

69 It is important to recognise that police officers have no automatic entitlement to the issue of a search warrant upon application being made. The Justice to whom an application is made has important statutory functions and responsibilities to be exercised in the circumstances of the case. If application was made by police for a further search warrant to be executed upon the office of a health professional concerning the present charges, it might be expected that the material presented to the Justice would include a copy of the judgment I am presently delivering.

70 Whether a search warrant was issued in these circumstances would be a matter for the relevant Justice exercising the powers and functions under the LEPRA Act.

71 Further, on the assumption that the Director of Public Prosecutions takes over these prosecutions in the near future, it might be thought that advice may be given by that office to investigating police which bears upon this issue.

72 These aspects may serve to indicate that the Plaintiff's concerns in this area are unduly heightened.

73 I am not persuaded that an order of the type sought should be made. There is real doubt that the Court ought ever make a permanent order of this type but, in any event, I am simply not persuaded that there is a proper basis for such an order in this case.

The Plaintiff's Notice to Produce and the Defendant's Application to Set it Aside

74 I have declined the Plaintiff's application for an interim stay of the criminal prosecution and for a permanent restraining order as sought.

75 I turn to the question of the Plaintiff's Notice to Produce and the Defendant's application that the Notice to Produce be set aside. It is appropriate to consider this aspect upon the basis of the claim as presently framed. As I have noted earlier, there is no claim for relief challenging the search warrant or its execution in the Summons.

76 I have identified earlier in this judgment the way in which the proceedings are likely to advance in the Children's Court. The Director of Public Prosecutions will take over the proceedings and the police will serve a brief of evidence upon the Plaintiff if the prosecution is to go forward. There will be an opportunity at committal proceedings, if that point is reached, for argument to be advanced and a ruling made as to whether any confidential communications relied upon by the prosecution ought be excluded under s.126B Evidence Act 1995. If the Plaintiff sees fit, production of documents may be sought by process issued in the Children's Court in the context of those proceedings.

77 In view of the decisions I have made concerning the first and second issues dealt with in this judgment, I am not persuaded that a legitimate forensic purpose has been demonstrated for the production of the documents which are subject to the Notice to Produce in the proceedings as they stand.

78 The Plaintiff will be entitled to the service of the prosecution brief in advance of any committal proceedings, together with provision of any other documents which may fall within the disclosure obligations of the Director of Public Prosecutions. In addition, as I have said, if the Plaintiff sees fit, process may be issued in the Children's Court for the production on subpoena of documents.

79 Given the rulings which I have made, I see no remaining legitimate forensic purpose for the Plaintiff to be entitled to production of the documents described in the Notice to Produce.

80 I propose to make an order that the Notice to Produce be set aside.

Conclusion

81 I have declined to make orders as sought by the Plaintiff and propose to set aside the Plaintiff's Notice to Produce.

82 It seems highly desirable, in the circumstances of this case, that the Director of Public Prosecutions moves to take over the proceedings in the Children's Court at an early time. The Court understands that this is what will occur in any event. There are features of the proceedings before the Children's Court which may be assisted by an early assessment of the appropriate exercise of prosecutorial discretion.

83 In due course, I wish to hear counsel on the following issues:

(a) what orders should be made to facilitate the provision of the Summons, affidavits, transcript of the proceedings in this Court and this judgment to the Director of Public Prosecutions without delay;

(b) what orders should be made under the Court Suppression and Non-Publication Orders Act 2010 and otherwise with respect to the proceedings in this Court and this judgment;

(c) what orders should be made with respect to the Summons;

(d) the question of costs.

84 I will give counsel an opportunity to make submissions on these issues at a later time.

85 I make the following orders:

(a) I decline the Plaintiff's application for an interim stay of the criminal proceedings against him listed before the [xxx] Children's Court on [xxx] 2012;

(b) I decline the Plaintiff's application for urgent permanent restraint with respect to the issuing of search warrants;

(c) I set aside the Plaintiff's Notice to Produce directed to the Defendant dated 1 August 2012.

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Decision last updated: 30 October 2013