Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: KS v Veitch (No 2) [2012] NSWCCA 266
• Hearing dates: 16 November 2012
• Decision date: 10 December 2012
• Before: Basten JA at [1]; Harrison J at [81]; Beech-Jones J at [82]

Decision

(1) Allow the appeal.

(2) Set aside the orders of Norrish DCJ dated 8 May 2012.

(3) Set aside the subpoena dated 19 April 2012 addressed to the Health Information and Records Service, Cumberland Hospital.

(4) Return the documents produced pursuant to the subpoena to the Cumberland Hospital.

• Catchwords: CRIMINAL LAW - procedure - sexual assault communications privilege - issue of subpoena and production of documents subject to leave - provision of reasons for granting or refusing leave - danger that reasons may disclose contents of compelled documents - Criminal Procedure Act 1986 (NSW), ss 295-306; CONSTITUTIONAL LAW - limits on legislative power of States - fair trial - sexual assault communications privilege - State law prohibits compelled production of counselling communications - issue of subpoena and production of documents subject to leave - whether law arbitrary or manifestly disproportionate response to traditional procedure - Criminal Procedure Act 1986 (NSW), ss 295-306; CONSTITUTIONAL LAW - limits on legislative power of States - essential characteristics of State court receiving federal jurisdiction - sexual assault communications privilege - State law prohibits compelled production of counselling communications - issue of subpoena and production of documents subject to leave - potential for unfair trial in State jurisdiction to taint court for the purpose of exercising federal jurisdiction - whether law can apply in federal jurisdiction - Criminal Procedure Act 1986 (NSW), ss 295-306; CRIMINAL LAW - procedure - power of court to stay unfair trial - sexual assault communications privilege - statute limits disclosure of counselling communications - issue of subpoena and production of documents subject to leave - whether unfairness of trial a factor weighing in favour of disclosure - whether statute limits power of court to stay unfair trial - Criminal Procedure Act 1986 (NSW), ss 295-306
• Legislation Cited: Constitution, ss 51(xxvii), 80, Ch III; Courts and Crimes Legislation Amendment Act 2012 (NSW), Sch 1.1 [11]; Crimes Act 1914 (Cth), s 15X; Criminal Appeal Act 1912 (NSW), s 5F; Criminal Procedure Act 1986 (NSW), ss 31, 130, 138, 150, 151, 293, 294A, 296, 297, 298, 299A, 299B, 299D, 300, 301, 302; Pt 5, Div 2; Customs Act 1901 (Cth), s 233B; Judiciary Act 1903 (Cth), s 78B
• Cases Cited: Commonwealth v Melbourne Harbour Trust Commissioners [1922] HCA 31; 31 CLR 1; Dietrich v The Queen [1992] HCA 57; 177 CLR 292; Forge v Australian Securities and Investments Commission [2006] HCA 44; 228 CLR 45; Grills v The Queen (1996) 70 ALJR 905; Grollo v Palmer [1995] HCA 26; 184 CLR 348; Huddart, Parker & Co Pty Ltd v Moorehead [1909] HCA 36; 8 CLR 330; Jago v District Court of New South Wales [1989] HCA 46; 168 CLR 23; Kastigar v United States 406 US 441 (1972); KS v Veitch [2012] NSWCCA 186; Leeth v The Commonwealth [1992] HCA 29; 174 CLR 455; Liyanage v The Queen [1967] 1 AC 259; Milicevic v Campbell [1975] HCA 20; 132 CLR 307; Mistretta v United States 488 US 361; Nicholas v The Queen [1998] HCA 9; 193 CLR 173; Polyukhovich v Commonwealth [1991] HCA 32; 172 CLR 501; Ridgeway v The Queen [1995] HCA 66; 184 CLR 19; Sorby v The Commonwealth [1983] HCA 10; 152 CLR 281; South Australia v Totani [2010] HCA 39; 242 CLR 1; Wainohu v State of New South Wales [2011] HCA 24; 243 CLR 181; Williamson v Ah On [1926] HCA 46; 39 CLR 95
• Texts Cited: Dr Wynes Legislative, Executive and Judicial Powers in Australia (4th ed, 1970) at 124-125
• Category: Principal judgment
• Parties: KS (Applicant); Joshua Veitch (Respondent); Attorney-General (NSW) (Intervening); Director of Public Prosecutions (Watching brief)
• Representation: Counsel: Mr P M Skinner/Ms S Goodwin (Applicant); Mr J S Gleeson/Ms B J Tronson/Mr C P Taylor (Respondent); Dr J G Renwick SC/Mr R J Ranken (Intervenor - Attorney-General (NSW); Mr D K Jordan (DPP - watching brief); Solicitors: Purcell Felton (Applicant); CBD Criminal Defence Lawyers (Respondent); Crown Solicitor's Office (Intervenor)
• File Number(s): CCA 2012/181447

Decision under appeal

• Jurisdiction: 9101
• Date of Decision: 2012-05-08 00:00:00
• Before: Norrish DCJ
• File Number(s): DC 2011/176700

HEADNOTE

[This headnote is not to be read as part of the judgment]

The respondent is charged with assault occasioning actual bodily harm and two counts involving sexual intercourse without consent. The applicant was the victim of the conduct alleged in each charge.

A subpoena was issued to Cumberland Hospital at the request of the respondent, requiring production of Hospital records relating to the applicant. Section 298 of the Criminal Procedure Act 1986 (NSW) relevantly provides:

"(1) Except with the leave of the court, a person cannot seek to compel (whether by subpoena or any other procedure) any other person to produce a document recording a protected confidence in, or in connection with, any criminal proceedings.

(2) Except with the leave of the court, a document recording a protected confidence cannot be produced in, or in connection with, any criminal proceedings."

The subpoena was issued, and documents produced, without the leave of the trial court. On 8 May 2012 the primary judge dismissed the applicant's application to have the subpoena set aside. His Honour inspected the documents produced and identified those that should be made available to the respondent.

The applicant appealed to this Court. In this Court, the respondent challenged the constitutional validity of ss 298(1) and (2), together with s 299D, of the Criminal Procedure Act.

The issues for determination on appeal were whether:

(i) the subpoena was effective in circumstances where it was issued without leave of the trial court,

(ii) sub-sections 298(1) and (2), together with s 299D, of the Criminal Procedure Act are constitutionally valid, and

(iii) the primary judge erred in ordering that certain documents produced in answer to the subpoena should be made available to the respondent.

The Court held (per Basten JA, Harrison and Beech-Jones JJ agreeing), allowing the appeal:

In relation to (i)

1. It was open to the trial Court to disregard the irregularity involved in the breaches of the prohibitions contained in s 298. The documents were produced only to the Court, which could have itself taken steps to ensure that it had access to the documents before ruling on an application for leave: [29]

In relation to (ii)

2. As the Criminal Procedure Act is a State law relating to evidence and procedure which does not (and cannot) apply of its own force in federal jurisdiction, it does not directly engage principles regarding the scope of federal judicial power. Cases arising in the exercise of federal jurisdiction are not clearly applicable to State jurisdiction, not only because the doctrine of the separation of powers has a different operation under State law, but because their relationship with aspects of the separation of powers is indirect: [63]

Commonwealth v Melbourne Harbour Trust Commissioners [1922] HCA 31; 31 CLR 1; Williamson v Ah On [1926] HCA 46; 39 CLR 95; Huddart, Parker & Co Pty Ltd v Moorehead [1909] HCA 36; 8 CLR 330; Sorby v The Commonwealth [1983] HCA 10; 152 CLR 281; Nicholas v The Queen [1998] HCA 9; 193 CLR 173 distinguished.

3. As the Criminal Procedure Act is a law relating to evidence and procedure, it stands squarely within the power of the Parliament with respect to the regulation of criminal trials. The law is neither arbitrary nor manifestly disproportionate in its response to a perceived weakness in traditional trial procedure: [64]

4. While the impugned provisions of the Criminal Procedure Act may make it more difficult for an accused person in certain circumstances to defend himself, they do not deprive the accused of some source of information to which he is presumptively entitled. Nor is the exclusion of protected confidences a law which would tend to bring the criminal trial process into disrepute: [65]

Nicholas v The Queen [1998] HCA 9; 193 CLR 173 referred to.

In relation to (iii)

5. The material produced pursuant to the subpoena, which was more than five years old at the time of the alleged offences, could not have had substantial probative value: [75], [79]

6. No weight was given to the possible effects upon the applicant in respect of future treatment in circumstances where the need for further counselling in respect of what the primary judge described as "highly traumatic events" could not be discounted. Nor was weight given to the apparent purpose of the provisions to protect counselling communications which pre-dated the alleged offences, and to ensure public confidence in the ability of a victim to prevent access to such material: [76]-[77]

7. The primary judge failed to consider whether the public interest in protecting confidences was substantially outweighed by the public interest in admitting the relevant information into evidence: [78]

Judgment

1 BASTEN JA: The Director of Public Prosecutions has filed an indictment against the respondent, seeking his trial on three counts, being one of assault occasioning actual bodily harm and two involving sexual intercourse without consent. The applicant (KS) was the victim of the conduct alleged in each charge; there is an order preventing publication of material which might tend to identify her.

2 On the first day fixed for the trial, but before the respondent had been arraigned, a question arose regarding documents produced to the District Court on a subpoena issued at the request of the respondent and directed to the Cumberland Hospital. The subpoena required production of Hospital records relating to the applicant. The applicant sought to have the subpoena set aside for want of a legitimate forensic purpose; the respondent sought access to the documents produced by the Hospital in response to the subpoena.

3 On 8 May 2012 the primary judge (Norrish DCJ) rejected the application to set the subpoena aside and, after inspecting the documents produced, identified those documents which should be made available for inspection, which were marked 'MFI 4'. Upon the Court being advised of a proposed application for leave to appeal to this Court, the documents were not in fact provided to the respondent but retained by the Court in a sealed envelope.

4 On 4 July 2012 the application for leave to appeal was considered by this Court as presently constituted. On 29 August 2012 a judgment was handed down dealing with limited issues: KS v Veitch [2012] NSWCCA 186. This Court granted leave to appeal pursuant to s 5F(3AA) of the Criminal Appeal Act 1912 (NSW) and disposed of one issue raised in the proceedings. However, it was not possible to dispose of the appeal in its entirety, because the respondent foreshadowed an application challenging the constitutional validity of provisions of the Criminal Procedure Act 1986 (NSW) which protect from disclosure records subject to "sexual assault communications privilege", dealt with in ss 295-306.

5 At the first hearing, the Court identified an issue which was entirely antecedent to the constitutional question, namely the power of the trial court to issue the subpoena when it did. If it were held that the subpoena was invalid, because issued before the Court acquired jurisdiction, the constitutional question would simply not have arisen. That ground of invalidity was said to arise because the subpoena was issued before the respondent had been arraigned and thus before the conferral of jurisdiction pursuant to s 130 of the Criminal Procedure Act. This Court concluded that the trial Court had power to issue a subpoena after the indictment was presented (by filing it with the Registrar), but prior to the time of arraignment. The subpoena was not invalid on that ground: at [22].

6 A further question was said to arise from the fact that the subpoena had been issued without leave of the trial Court and documents had been produced without leave of the trial Court, contrary to the requirements of s 298 of the Criminal Procedure Act. However, as that argument turned on the proper construction of the sections which were to be the subject of the constitutional challenge, this Court declined to determine that issue prior to the foreshadowed issue of notices under s 78B of the Judiciary Act 1903 (Cth) notifying the Attorneys-General of the proposed constitutional question.

7 The necessary procedural steps having been effected, the matter came back before this Court on 16 November 2012.

Issues

8 The three issues which remained outstanding were:

(a) the effect of a subpoena seeking production of documents covered by the sexual assault communications privilege, issued without leave of the Court;

(b) the constitutional validity of the constraints on production of documents covered by the sexual assault communications privilege, and

(c) the correctness of the order made by the primary judge.

9 In the first judgment, this Court stated at [35]:

"The proposed challenge to the validity of s 298 (and specifically sub-s 298(1)) contends that it constitutes a practical prohibition on the production of relevant documents and evidence, because of the substantial limitations imposed by s 299D on any application for leave. The respondent wishes to contend that those limitations restrict the court's capacity to provide an accused with a fair trial and therefore exceed the legislative power of the State Parliament."

10 The s 78B notice filed on 4 September 2012 identified two constitutional matters said to arise in the proceedings, namely:

"(a) Whether ss 298(1) and (2) are invalid because the conditional prohibition in s 299D on the grant of leave puts a court considering such an application in the position of being required to carry out a task that it cannot perform on the materials available to it, thereby making the legislature's grant of power to the court illusory and not consonant with the nature of judicial power under Chapter III of the Constitution and the judicial power of the States.

(b) Whether the legislative power of the States is limited by a norm of constitutional significance being that an accused is entitled to have his or her guilt or innocence determined by means of fair trial according to law with an entitlement to have the facts determined in accordance with rules and procedures that truly permit the facts to be ascertained."

11 The written submissions filed by the respondent in support of the constitutional contentions limited the argument to be presented to the second matter. However, because of the somewhat awkward grammatical form of the statement of the issues, they could not readily be separated in this way. The second matter, (b), was argued on the basis that the statement of the matter commenced "Whether ss 298(1) and (2), together with s 299D, are invalid because the legislative power of the States...".

12 Despite the abandonment of (a), the respondent nevertheless submitted, in accordance with the language of (a), that the power of the court to grant leave was in practical terms illusory and therefore the prohibition on access to documents covered by the privilege was absolute.

13 Both parties accepted that the first task of this Court was to construe the relevant statutory provisions, before considering the constitutional arguments. That course should be adopted.

Statutory provisions

(a) scope of privilege

14 Chapter 6, Part 5, Div 2 of the Criminal Procedure Act commenced on 7 July 2003, although some of its provisions previously existed in different forms and with different numbering. It is headed "Sexual assault communications privilege". It was the subject of major amendments in December 2010, at which time it took its present form, with one additional amendment in March 2012. Its operation revolves around the concept of a "protected confidence" which is defined in s 296:

"296 What is a protected confidence?

(1) In this Division:

protected confidence means a counselling communication that is made by, to or about a victim or alleged victim of a sexual assault offence.

(2) A counselling communication is a protected confidence for the purposes of this Division even if it:

(a) was made before the acts constituting the relevant sexual assault offence occurred or are alleged to have occurred, or

(b) was not made in connection with a sexual assault offence or alleged sexual assault offence or any condition arising from a sexual assault offence or alleged sexual assault offence."

15 The term "counselling communication" is also defined (in s 296(4)) in the following terms:

"counselling communication means a communication:

(a) made in confidence by a person (the counselled person) to another person (the counsellor) who is counselling the person in relation to any harm the person may have suffered, or

(b) made in confidence to or about the counselled person by the counsellor in the course of that counselling, or

(c) made in confidence about the counselled person by a counsellor or a parent, carer or other supportive person who is present to facilitate communication between the counselled person and the counsellor or to otherwise further the counselling process, or

(d) made in confidence by or to the counsellor, by or to another counsellor or by or to a person who is counselling, or has at any time counselled, the person."

16 The term "harm" (found in sub-paragraph (a) above) includes "actual physical bodily harm, financial loss, stress or shock, damage to reputation or emotional or psychological harm (such as shame, humiliation and fear)": s 295(1). The term "harm" is used in two contexts in this Division. First, in the definition of counselling communication in sub-s 296(4)(a), it refers to any harm the person being counselled "may have suffered". The person being counselled being the victim of an alleged sexual assault, it might be inferred that the harm in question is that suffered by the person as a consequence of the alleged offence. Similarly, in sub-s (5) the concept of counselling is limited to a circumstance where the counsellor had undertaken training or study or has experience relevant to the process of counselling persons "who have suffered harm": again, the reference appears to be to the harm suffered by the victim as a consequence of the alleged offence.

17 The second sense in which harm is identified in these provisions is that of harm likely to be suffered by the person counselled as a result of disclosure of the communications: s 299D(1)(c), (2) and (3); s 302(1). For present purposes, this use of "harm" may be put to one side.

18 The expansive provisions of s 296(2) tend to conflict with the definition of "counselling communication" in s 296(4). The latter, with its reference to "any harm the person may have suffered", together with the considerations identified in s 299D(2) referred to below, suggest a concern to encourage reporting of sexual assaults, without prejudice to the victim's need to obtain counselling. On the other hand, the terms of s 296(2) expand the concept of a protected confidence to include counselling unrelated to the sexual assault offence the subject of the charge, or indeed any sexual assault offence. One explanation may be that Parliament wished to avoid the victim of a sexual assault being discouraged from reporting the offence if that course might result in revelation of any other disclosures made in counselling sessions, even if unrelated to the sexual assault. That said, the broad construction (giving full effect to s 296(2)) might have greater force if it covered counselling for any condition, including disabilities, rather than "harm", which implies damage to which one has been subjected by another.

19 The proper construction of the section was relevant because the documents sought by the accused were clinical notes for the period 1 January 1995 to 31 December 2007, a period ending more than three years before the alleged offence. However, the trial judge assumed that all the documents were covered by the privilege, thus adopting the broader interpretation. The respondent did not challenge that construction, which should therefore be accepted for the purpose of testing the constitutional challenge.

(b) scope of prohibitions

20 There are two sets of prohibitions contained within the Division. The first concerns documents recording protected confidences sought to be obtained in connection with any "preliminary criminal proceeding", being committal proceedings or bail proceedings: s 297. This prohibition is absolute and not capable of being waived by the court. The validity of this section is not in issue.

21 The critical prohibition for present purposes is found in s 298 which reads:

"298 Protected confidences-criminal proceedings

(1) Except with the leave of the court, a person cannot seek to compel (whether by subpoena or any other procedure) any other person to produce a document recording a protected confidence in, or in connection with, any criminal proceedings.

(2) Except with the leave of the court, a document recording a protected confidence cannot be produced in, or in connection with, any criminal proceedings.

(3) Except with the leave of the court, evidence cannot be adduced in any criminal proceedings if it would disclose a protected confidence or the contents of a document recording a protected confidence."

22 The person being counselled, if the victim of the alleged offence, is referred to as the "principal protected confider" and, though not a party to the criminal proceedings, may appear in those proceedings "if a document is sought to be produced or evidence is sought to be adduced that may disclose a protected confidence made by, to or about the protected confider": s 299A. The applicant was heard in the District Court pursuant to that conferral of standing.

23 The tripartite structure of s 298 appears to prohibit the issue of a subpoena, the production of a document and the adducing of evidence recording or revealing a protected confidence. Where leave is granted to issue a subpoena, it would make little sense to impose a subsequent leave requirement on production in answer to the subpoena. Subsection (2) should be understood to impose a constraint on the holder of a document recording a protected confidence from producing it otherwise than pursuant to a subpoena issued with leave. Although the prohibition in sub-s (1) bites at an early stage, its primary purpose is to prevent any person other than the persons who are party to the counselling communication having access to the contents of the document. Subsection (3) is engaged whenever a document is sought to be tendered or evidence falling within the prohibition is sought to be adduced from a witness.

24 If leave were sought in any of the circumstances covered by s 298, the applicant for leave would need to engage with the criteria to be satisfied before leave can be granted. The criteria are identified in the form of a qualified prohibition:

"299D Determining whether to grant leave

(1) The court cannot grant an application for leave under this Division unless the court is satisfied that:

(a) the document or evidence will, either by itself or having regard to other documents or evidence produced or adduced or to be produced or adduced by the party seeking to produce or adduce the document or evidence, have substantial probative value, and

(b) other documents or evidence concerning the matters to which the protected confidence relates are not available, and

(c) the public interest in preserving the confidentiality of protected confidences and protecting the principal protected confider from harm is substantially outweighed by the public interest in admitting into evidence information or the contents of a document of substantial probative value.

(2) Without limiting the matters that the court may take into account for the purposes of determining the public interest in preserving the confidentiality of protected confidences and protecting the principal protected confider from harm, the court must take into account the following:

(a) the need to encourage victims of sexual offences to seek counselling,

(b) that the effectiveness of counselling is likely to be dependent on the maintenance of the confidentiality of the counselling relationship,

(c) the public interest in ensuring that victims of sexual offences receive effective counselling,

(d) that the disclosure of the protected confidence is likely to damage or undermine the relationship between the counsellor and the counselled person,

(e) whether disclosure of the protected confidence is sought on the basis of a discriminatory belief or bias,

(f) that the adducing of the evidence is likely to infringe a reasonable expectation of privacy.

(3) For the purposes of determining an application for leave under this Division, the court may permit a confidential statement to be made to it by or on behalf of the principal protected confider by affidavit specifying the harm the confider is likely to suffer if the application for leave is granted.

(4) A court must not disclose or make available to a party (other than the principal protected confider) any confidential statement made to the court under this section by or on behalf of the principal protected confider.

(5) The court must state its reasons for granting or refusing to grant an application for leave under this Division.

(6) If there is a jury, the court is to hear and determine any application for leave under this Division in the absence of the jury."

25 The Division does not prevent production of a document or the adducing of evidence where the principal protected confider has consented in writing: s 300. There is also an exception where the communication was made or the document prepared in the furtherance of a fraud, or an offence, or another act rendering the person liable to a civil penalty: s 301.

26 Certain procedural aspects of an application for leave are dealt with in s 299B, which reads:

"299B Determining if there is a protected confidence

(1) If a question arises under this Division relating to a document or evidence, a court may consider the document or evidence.

(2) If there is a jury, the document or evidence is to be considered in the absence of the jury.

(3) A court must not make available or disclose to a party (other than a protected confider) any document or evidence to which this section applies (or the contents of any such document) unless:

(a) the court determines that the document does not record a protected confidence or that the evidence would not disclose a protected confidence, or

(b) a party has been given leave under this Division in relation to the document or evidence and making available or disclosing the document or evidence is consistent with that leave.

(4) A court may make any orders it thinks fit to facilitate its consideration of a document or evidence under this section.

(5) This section has effect despite sections 297 and 298."

27 The procedural steps set out in s 299B become necessary in circumstances where the court is required to consider the criteria identified in s 299D, even for the purpose of considering a grant of leave to issue a subpoena. That problem did not arise prior to amendments made in 2010. In an earlier version, s 298 relevantly provided:

"298 Evidence of sexual assault communications may be required to be produced in, or in connection with, criminal proceedings, or adduced, with leave

(1) A person who objects to production of a document recording a protected confidence on the ground that it is privileged under this Division cannot be required (whether by subpoena or any other procedure) to produce the document for inspection by a party in, or in connection with, any criminal proceedings unless:

(a) the document is first produced for inspection by the court for the purposes of ruling on the objection, and

(b) the court is satisfied (whether on inspection of the document or at some later stage in the proceedings) that:

(i) the contents of the document will ... have substantial probative value ...."

28 Section 299B reflects the same procedural purpose, namely that the court have access to the document before deciding whether it should be made available to a party and that it should have the relevant powers to "facilitate its consideration of" the document: s 299B(4). The potential inconsistency between that provision and s 298(1) (in its current form) was addressed by the inclusion of s 299B(5), introduced by the Courts and Crimes Legislation Amendment Act 2012 (NSW), Sch 1.1 [11], which commenced on 21 March 2012.

29 Although in terms s 298(1) prohibits a party, without leave of the court, from seeking the issue of a subpoena with respect to documents containing protected confidences, the facts that the documents were produced only to the Court and that the Court could itself have taken steps to ensure that it had access to the documents before ruling on an application for leave, suggest that the issue of the subpoena without leave, although irregular, achieved a purpose which could have been achieved by other means. In the circumstances, it was open to the trial Court to disregard the irregularity and consider the documents in determining whether the respondent should have access to them.

30 It is convenient to turn next to the operation of s 299D. In the light of the preceding discussion, it is clear that the circumstances in which leave will be required are the production of documents for the purpose of giving access to the parties and the adducing of the contents of the documents in evidence. Leaving the question of evidence to one side, it is the use which might be made of the documents by the party seeking access which must be the focus of the court's determination.

31 Under the general requirements in relation to a subpoena or a notice to produce, it is not necessary that the moving party demonstrate that the material sought will be admissible in evidence; the accepted test of a "legitimate forensic purpose" is undoubtedly broader than that. An accused may well seek access to documents in order to formulate lines of cross-examination, either by suggesting that the applicant has made inconsistent statements to a counsellor in relation to the circumstances of the offence, or by using material in the medical records to suggest that the evidence of the applicant may be unreliable. It may be possible to formulate a line of cross-examination without seeking to admit into evidence the document or the information contained in the document.

32 It follows that the first limb, requiring that the court be satisfied that the document or evidence "have substantial probative value", before allowing the accused access to it, will constitute a significant reduction in the material which might be made available to the accused under the general law with respect to access to material on subpoena or through a notice to produce (or, indeed, a call for a document in the course of proceedings). This reduction is the result of the inclusion in s 299D(1) of paragraph (a).

33 The second limb, in paragraph (b), requiring that the information or matters to which the protected confidence relates not be otherwise available, is intended to prevent access to counselling communications where relevant material is available from another source, in this case the applicant's statements to police.

34 The third requirement imposes an additional and significant constraint. It requires that two competing public interests be considered, with access being conditional upon the public interest in protection of confidences being "substantially outweighed" by the interest in admitting the material into evidence. Significantly, the former public interest has two limbs: the first addresses the public interest in maintaining protected confidences generally, while the second relates to possible harm to the particular confider. The purpose of protecting such confidences generally is to encourage victims of sexual assault to seek professional assistance to deal with the resultant trauma. That public purpose will be undermined if confidentiality is too readily held to be overridden by other public interests, in circumstances where the court may be satisfied that the particular confider will not suffer significant harm. On the other hand, an assessment that the information has substantial probative value, in the usual case no doubt by casting doubt on the veracity or reliability of the complainant, will militate in favour of disclosure where it could give rise to a doubt as to the guilt of the accused.

35 For the purpose of making the balance required by paragraph (c), it appears to be assumed that the information contained in the documents will in fact be admitted into evidence in one form or another. How that assumption would operate in particular circumstances is not a matter which can be helpfully addressed in the abstract.

36 The respondent characterised the effect of the Division as precluding access to such communications. However, that is not a fair reflection of the operation of s 299D. It should be accepted that even where the information contained in the document has substantial probative value (in the sense discussed above) and the risk of significant harm to the individual in the event of disclosure is not high, factors which favour maintaining confidentially generally may be significant. Although the balancing exercise is weighted against disclosure, that course is nevertheless permitted where the court is satisfied that the public interest in such an outcome substantially outweighs the countervailing considerations.

37 There is a further factor which may arise in this context. The concept of "substantive probative value", accepting that it extends to questions or evidence relevant to the credibility of the complainant, must nevertheless be concerned with admissible material. However, use of some material which is potentially of greatest probative value, namely material relating to previous sexual experience, lack of sexual experience or sexual activity, will be precluded by s 293.

38 Finally, it should be noted that there is nothing in the statutory scheme which precludes or limits the power of the court to stay proceedings which will result in an unfair trial. Assuming that the operative provisions are constitutionally valid, it is not open to a court to refuse to exercise jurisdiction because it considers that a statute would have the effect of rendering a trial unfair: Grills v The Queen (1996) 70 ALJR 905. That is not to say that the proper application of the rules of evidence and procedure may not, in particular circumstances, give rise to such unfairness as to warrant a stay of the proceedings: Jago v District Court of New South Wales [1989] HCA 46; 168 CLR 23; Dietrich v The Queen [1992] HCA 57; 177 CLR 292. It is conceivable in theory that there could be a case in which the public interest in preserving confidentiality is not substantially outweighed by the public interest in disclosure and yet a trial run on that basis would be unfair. Generally, however, the potential unfairness of the trial will be a significant factor weighing in the balance in favour of disclosure. Whether and when the overriding power to stay a trial may be invoked, because of the effects of constraints imposed by the sexual assault communications privilege, need not be pursued. No such issue was raised in the present proceedings.

Constitutionality of impugned provisions

39 The constitutional argument raised by the respondent had, in effect, two limbs. First, the constraints imposed by ss 298 and 299D deprived the accused, in a practical sense, of the possibility of a fair trial. Secondly, although the offences arose under State law in a State court, their effect was to deprive State courts of a characteristic essential to their continued operation as repositories of federal jurisdiction under Ch III of the Constitution. Thus Ch III imposed a constitutional restraint on the power of a State to vary traditional procedures operating in the conduct of criminal trials if to do so would render such trials unfair.

40 In South Australia v Totani [2010] HCA 39; 242 CLR 1 at [62] French CJ described an assumption underlying Ch III of the Constitution that "the courts of the States continue to bear the defining characteristics of courts and, in particular, the characteristics of independence, impartiality, fairness and adherence to the open-court principle". Although the Chief Justice described the formulation as "deliberately non-exhaustive" no other characteristics were identified in these proceedings. The characteristics of independence and impartiality have been described as "institutional characteristics": Forge v Australian Securities and Investments Commission [2006] HCA 44; 228 CLR 45 at [64] (Gummow, Hayne and Crennan JJ). Application of rules of procedure or evidence of the kind in contemplation in the present case do not raise any question as to the independence or impartiality of the trial court. Further, it must be noted that the characteristics are not rules: the open court principle, for example, is subject to well established exceptions which operate without any diminution of the nature of the court. The challenge in the present case is directed to the fairness of a trial conducted in accordance with the law relating to sexual assault communications privilege.

41 A challenge based on constraints on the procedures governing a trial or the evidence admissible in a trial does not so much involve the cooption of the court to the purposes of the Executive (and thus potentially contravene the separation of powers), but rather potentially limits the fairness of the trial process. The distinction is important because it is more likely that a coopted court will have characteristics incompatible with the exercise of federal jurisdiction, even when exercising state jurisdiction. There is less potential for an unfair trial which arises in the exercise of State jurisdiction to cause the court as an institution to become tainted for the purpose of exercising federal jurisdiction. (It should, however, be recognised that a State law which limits the evidence available in relation to a State offence may apply in federal jurisdiction if any charge before the trial court arises under a Commonwealth law.)

42 Relevant cases dealing with principles as to the separation of powers and hence the scope and operation of judicial power fall into two categories. First, there are cases concerned with the conferral of non-judicial power on judicial officers. Such cases are concerned with the qualities of impartiality and non-partisanship, which are essential attributes of the exercise of judicial power under the rule of law and which should not "be borrowed by the political Branches to cloak their work in the neutral colours of judicial action": Mistretta v United States 488 US 361 at 407 (1989) relied on in Grollo v Palmer [1995] HCA 26; 184 CLR 348 at 366 (Brennan CJ, Deane, Dawson and Toohey JJ) and at 377 (McHugh J). Those cases may be put to one side for present purposes.

43 Secondly, there are cases concerned with statutory regulation of the legal process in a manner said to be incompatible with a conventional understanding of the essential elements of a fair trial. Arguably, an extreme example in this category may merge into the former because the regulation is seen to tilt the balance so far in favour of a state interest as to involve a conscription of the court into the service of the state. Such a conclusion is more likely in circumstances where the legislation is directed not to the public at large, but to identifiable individuals: Liyanage v The Queen [1967] 1 AC 259 at 290.

44 A lesser intrusion, of closer relevance to the present case was identified, in abstract terms, by the plurality in Leeth v The Commonwealth [1992] HCA 29; 174 CLR 455 at 470, where Mason CJ, Dawson and McHugh JJ stated, after referring to Liyanage and the principle that bills of attainder may offend against the separation of judicial power:

"But a law of general application which seeks in some respect to govern the exercise of a jurisdiction which it confers does not trespass upon the judicial function. It may well be that any attempt on the part of the legislature to cause a court to act in a manner contrary to natural justice would impose a non-judicial requirement inconsistent with the exercise of judicial power, but the rules of natural justice are essentially functional or procedural and, as the Privy Council observed in the Boilermakers' Case [[1957] HCA 12; 95 CLR 529 at 542], a fundamental principle which lies behind the concept of natural justice is not remote from the principle which inspires the theory of separation of powers."

45 Leeth was concerned with statutory provisions which required federal offenders to be sentenced according to laws applicable to prisoners in the State in which they were tried, which operated unequally across the country. A challenge based on the proposition that the unequal operation of such laws was unconstitutional was rejected. Although in dissent, Gaudron J spoke in similar terms to the majority, with respect to the starting point of the analysis (at 502):

"It is an essential feature of judicial power that it should be exercised in accordance with the judicial process. A legislative direction which would require a power vested in a court to be exercised other than in accordance with that process is necessarily invalid. Its effect would be to take the power outside the concept of 'judicial power'. And a conferral of a power of that kind would infringe the prohibition deriving from s 71 which limits the powers which may be conferred on a court to those which are judicial or ancillary or incidental to judicial power."

See also Polyukhovich v Commonwealth [1991] HCA 32; 172 CLR 501 at 607 (Deane J); Dietrich v The Queen, 177 CLR 292 at 326 (Deane and Gaudron JJ).

46 To the extent that a law may be said to encroach upon an essential element of a fair trial, so as to entail invalidity, that element is constitutionally entrenched: to preserve it from variation, is to limit the power of the legislature. There are four categories of legislation, broadly relevant to the present circumstances, where there has been a challenge to constitutional validity because the legislation was said to regulate or vary the common law with respect to:

(a) the burden of proof on the prosecution;

(b) protections available to a suspect or person charged, such as the privilege against self-incrimination;

(c) the scope of challenge available to prosecution evidence, or

(d) availability of evidence to the defence.

(a) reversal of burden of proof

47 In an early case, the Commonwealth sued the Commissioners who controlled the wharves at the Port of Melbourne on a bond given in the form prescribed under the Customs Act 1901 (Cth): Commonwealth v Melbourne Harbour Trust Commissioners [1922] HCA 31; 31 CLR 1. Noting a challenge to the constitutionality of a provision of the Customs Act placing the burden of proof on the defendant, the joint reasons (of Knox CJ, Gavan Duffy and Starke JJ) stated at 12:

"The section makes provision for the enforcement of a Customs security, and in effect casts upon the party who purports to have given the security the burden of proving either that he has not executed it or that he has complied with its conditions or that the security has been released or satisfied. A law does not usurp judicial power because it regulates the method or burden of proving facts."

48 Isaacs J described the provision as "a mere evidentiary section and of a class well known in Customs Acts"; he continued (at 17-18):

"These are only examples of many enactments placing the burden of proof on defendants, whose knowledge of the true facts is necessarily greater than that of anyone else. Justice might easily be otherwise defeated."

49 Melbourne Harbour Trust Commissioners was a civil case: a challenge to the reversal of the onus of proof in criminal proceedings arose in Williamson v Ah On [1926] HCA 46; 39 CLR 95. The defendant was charged with being a prohibited immigrant and thereupon became subject to the burden of proving that he was not an immigrant and that he had not evaded an officer of Customs in entering the country. In dissent, Knox CJ and Gavan Duffy J held that the effect of the legislation was to expand the powers of the Commonwealth beyond the power to make laws with respect to immigration in s 51(xxvii) of the Constitution. They accepted, however, that "Parliament has power to prescribe the procedure of its Courts": at 102.

50 In language rich with hyperbole, Isaacs J considered whether the law could be regarded "as a mere arbitrary decree, or as a valuable example of true adjective law ancillary and assistant to the enforcement of the main substantive law": at 116. In identifying the test of validity Isaacs J stated at 117:

"For instance, applying the reasoning of Lord Halsbury LC in Sharp v Wakefield [(1891) AC 173 at 179], if the legislation were so arbitrary and fanciful, so flagrantly destructive of any real and reasonable chance to place the real facts before the Court for determination of the issue - in short, a mere disguise for extending the legislative power - the Court would not hesitate to say the statutory provisions attacked were beyond the uttermost border of incidental aid to effectuate the main power."

51 Higgins J stated at 122:

"The argument that it is a usurpation of the judicial power of the Commonwealth if Parliament prescribe what evidence may or may not be used in legal proceedings as to offences created or provisions made by Parliament under its legitimate powers is, to my mind, destitute of foundation."

52 Rich and Starke JJ also held that the Parliament had power to "enact whatever laws of evidence it thinks expedient, and in particular justifies laws regulating the burden of proof, both in civil and criminal cases, and the effect of non-compliance with those laws in legal proceedings": at 127. They held that the impugned provisions did not "constitute ... any exercise by the Parliament of the judicial power of the Commonwealth": at 128.

53 Although the primary argument in Williamson appears to have been directed to a usurpation of the judicial power by the legislative arm of government, there is an underlying concern that regulation of court procedure which was arbitrary and unfair might extend beyond the legislative power of the Parliament, either in relation to the substantive head of power on which the criminal offence was based or, possibly, to the power to legislate with respect to the courts.

54 There was another aspect of Williamson which was noted by Dr Wynes in Legislative, Executive and Judicial Powers in Australia (4th ed, 1970) at 124-125, referred to by Gibbs J in the later Customs Act case of Milicevic v Campbell [1975] HCA 20; 132 CLR 307 at 317. Dr Wynes' concern was as to the validity of a law which did not merely regulate the burden of proof but identified the only available defence and the means by which it was to be proved: at 125. That concern, however, related to the expansion of the substantive power of the Commonwealth, rather than the limits of legislation constraining judicial power.

(b) removal of a common law protection

55 There have been many statutory provisions restricting the privilege against self-incrimination: from time to time they have been the subject of challenges as to their constitutional validity. In the USA, the Fifth Amendment to the Constitution has been held not to invalidate such laws in all circumstances, but to require that there be a statutory guarantee of immunity from use of compelled testimony in subsequent criminal proceedings: see, eg, Kastigar v United States 406 US 441 (1972). In this country, the earliest challenges to the validity of such legislative restrictions sought to rely (unsuccessfully) on the prescription of a jury trial for Commonwealth indictable offences: Constitution, s 80; Huddart, Parker & Co Pty Ltd v Moorehead [1909] HCA 36; 8 CLR 330 at 358 (Griffith CJ), 375 (O'Connor J), 385-386 (Isaacs J). An argument going beyond the scope of s 80 and seeking to derive support from the concept of federal judicial power was rejected in Sorby v The Commonwealth [1983] HCA 10; 152 CLR 281 at 298-299 (Gibbs CJ) and 308 (Mason, Wilson and Dawson JJ). These and later cases to similar effect, however, have been concerned with the operation of compulsory questioning in non-judicial proceedings. None deals with legislation purporting to strip from the accused in criminal proceedings the fundamental right to silence.

(c) restrictions on challenge to prosecution evidence

56 The respondent sought assistance in the judgments in Nicholas v The Queen [1998] HCA 9; 193 CLR 173. The applicant in that matter had been charged with possession of heroin which had been imported by law enforcement officers pursuant to a "controlled operation". In a previous decision (Ridgeway v The Queen [1995] HCA 66; 184 CLR 19) evidence obtained by such means was held to be improperly admitted in a criminal trial for an offence under the Customs Act 1901 (Cth), s 233B. A provision was then inserted in the Crimes Act 1914 (Cth) requiring the court to disregard the illegality committed by law enforcement officers in determining the admissibility of the evidence: Crimes Act, s 15X. The validity of that provision was challenged as a usurpation or impermissible interference with the judicial power of the Commonwealth.

57 Toohey J understood the submissions to involve the following further steps, at [48]:

"The proposition is that the legislature cannot direct a court exercising the judicial power of the Commonwealth as to the manner in which the power is exercised. If necessary, this is further refined to say, at least not in such a way as is inconsistent with the essential powers of a court or with the nature of judicial process."

58 Gaudron J in Nicholas expressed the issues in the following way:

"[74] In my view, consistency with the essential character of a court and with the nature of judicial power necessitates that a court not be required or authorised to proceed in a manner that does not ensure equality before the law, impartiality and the appearance of impartiality, the right of a party to meet the case made against him or her, the independent determination of the matter in controversy by application of the law to facts determined in accordance with rules and procedures which truly permit the facts to be ascertained and, in the case of criminal proceedings, the determination of guilt or innocence by means of a fair trial according to law. It means, moreover, that a court cannot be required or authorised to proceed in any manner which involves an abuse of process, which would render its proceedings inefficacious, or which brings or tends to bring the administration of justice into disrepute.

[75] The argument that s 15X transforms the power to be exercised in determining guilt or innocence is based on two distinct premises. The first is that s 15X prevents the independent determination of the matter in controversy. The second is that it requires the court to proceed in circumstances which bring or tend to bring the administration of justice into disrepute."

59 Gummow J expressed the issue in the following terms:

"[145] The essential question concerns the limitation imposed by s 15X upon the discretion which the trial court otherwise would enjoy to exclude evidence that the heroin in question was imported into Australia in contravention of the Customs Act. Is this such an interference with the governance of the trial and a distortion of its predominant characteristics as to involve the trial court in the determination of the criminal guilt of the accused otherwise than by the exercise of the judicial power of the Commonwealth?

[146] The legislative powers of the Commonwealth do not extend to the making of a law which authorises or requires a court exercising the judicial power to do so in a manner which is inconsistent with its nature."

60 Gummow J concluded at [162]:

"The section in its operation, if not necessarily on its face, deals not with proof but with a discretion to exclude evidence of facts. It operates to facilitate the proof by the prosecution of its case by the admission of evidence that otherwise was liable to exclusion. The case for the accused is made that much more difficult than it would have been if s 15X had not been enacted. However, the section does not deem any ultimate fact to exist, or to have been proved. It leaves untouched the elements of the crimes for which the accused is to be tried. Nor does s 15X change the amount or degree of proof essential to convict him from that required when the alleged offences were committed."

61 Hayne J in Nicholas stated:

"[235] Moreover, Pt 1AB [which included s 15X] is concerned with a rule about the reception or rejection of certain evidence. That Parliament may make laws prescribing rules of evidence is clear and was not disputed. Plainly, Parliament may make laws (as it has) on subjects as diverse as the circumstances in which hearsay may be received or the circumstances in which confessional statements by accused persons may be admitted in evidence and it may do so to the exclusion of the previous common law rules.

[236] The common law rules that were developed in these areas were often, if not always, developed with questions such as reliability of evidence or fairness to the accused at the forefront of consideration and thus, at least to that extent, with questions of the integrity of the curial process and its results well in mind. And yet such legislation does not infringe the separation of powers."

(d) limitations on evidence available to defence

62 There are various ways in which the defence of a criminal proceeding is constrained by rules of procedure and evidence not found in the general law. For example, the right of an accused person to make an unsworn statement was abolished more than a decade ago: Criminal Procedure Act, s 31. The defence is now subject to certain pre-trial disclosure requirements (s 138), including the obligation to give notice of a proposed alibi (s 150) and evidence tending to prove a substantial mental impairment (s 151). In relation to certain sexual offences, there are limitations on the evidence which can be called as to prior sexual experience or lack of sexual experience of the complainant: s 293. An unrepresented accused is not able to cross-examine a complainant with respect to certain sexual offences: s 294A.

Protected confidences - the Constitutional challenge

63 Three factors are critical to the proper disposal of the constitutional challenge. First, the law in question is a State law relating to evidence and procedure which does not (and cannot) apply of its own force in federal jurisdiction. Accordingly it does not directly engage principles regarding the scope of federal judicial power. The cases in which a challenge has been raised to the constitutional validity of a law limiting the availability of commonly used procedures, or rules of evidence, have arisen in federal jurisdiction. Their application in relation to State jurisdiction is less clear, not only because the doctrine of the separation of powers has a different operation under State law, but because their relationship with aspects of the separation of powers is indirect.

64 Secondly, because it is a law relating to evidence and procedure, it stands squarely within the power of the Parliament with respect to the regulation of criminal trials. It reflects a public policy which has received greater attention and emphasis in recent years than in earlier times, but is arguably a product of more enlightened attitudes towards the victims of sexual offences and the importance of balancing the legitimate interests of the accused against the legitimate interests of victims of sexual assaults. The law is neither arbitrary nor manifestly disproportionate in its response to a perceived weakness in traditional trial procedure: cf Williamson at 117 (Isaacs J).

65 Thirdly, as noted by Gummow J in Nicholas, its effect may be to make it more difficult for an accused person in certain circumstances to defend himself. Nevertheless, to protect the confidences as between the victim and a counsellor is not to deprive the accused of some source of information to which he is presumptively entitled. Nor is the exclusion of protected confidences a law which would tend to bring the criminal trial process into disrepute.

66 There are other areas of the law where public interests justify exclusion of documents or other information from disclosure in criminal or civil proceedings. Obvious examples are public interest immunity (which may extend to national security or to the identity of police informers) and client legal privilege (which covers communications between client and lawyer). In some jurisdictions protection is given to doctor/patient communications generally (therapeutic privilege), to priest and penitent communications and to those providing information to journalists. Such matters illustrate the acceptance that the interest of the courts in determining proceedings, including criminal proceedings, on all available evidence must in some circumstances be qualified to the protection of other public interests. The protection of sexual assault communications involves a balance of policies which has been determined in a particular way by the State Parliament and in which, subject to constitutional constraints, the court should not interfere.

67 The final step in the argument is the proposition that, although the choice was one available to the State Parliament, the imposition of the privilege diminishes the character of a State court in which it must be applied in such a way as to render the court an inappropriate vehicle for the reception of federal jurisdiction. Because the Commonwealth has no direct interest in regulating sexual offences within a State, it is largely hypothetical to ask whether the sexual assault communications privilege could be adopted as part of Commonwealth law. However, for the reasons given above, there is no reason to suppose that it would impinge unconstitutionally on the exercise of federal judicial power if the Commonwealth sought to protect victims of sexual assault from disclosure of counselling confidences. Accordingly the constitutional challenge must fail.

Correctness of decision of primary judge

68 The challenge by the applicant to the ruling of the primary judge requires this Court to consider whether his Honour's approach was erroneous in any respect, including in his assessment of the material sought by the respondent. A court is required to state its reasons for granting or refusing an application for leave: s 299D(5). That obligation should extend to this Court on appeal from such a ruling: Wainohu v State of New South Wales [2011] HCA 24; 243 CLR 181 at [56] (French CJ and Kiefel J).

69 The requirement to give reasons is fraught with difficulties. A judge determining such a matter is likely to have available both the documents sought and a confidential statement made to the court by the protected confider or complainant under s 299D(3). That material cannot be made available and should not be referred to in reasons in a way which discloses its contents. Before the primary judge delivered his oral reasons, but after announcing the order he proposed to make, counsel for the complainant sought a stay pending appeal, "just to alert your Honour that that is the course I intend to seek" so that "your reasons may [not] inadvertently disclose the contents of the evidence": Tcpt, 08/05/12, p 64(30)-(48). Although his Honour expressed confidence in his ability not to disclose such material inadvertently, he had in fact already done so by referring to the fact that the documents contained certain material.

70 Giving reasons (even in closed court, as occurred in this case) which provide any assistance to the respondent in knowing why the application has been refused runs the risk of disclosing, perhaps at a level of generality, the contents of the documents to which access is refused. Some explanation is possible. For example, reference may be made to the exclusion of material which would not be admissible, without disclosing its nature. The risk of inadvertent disclosure is probably accentuated in circumstances where the primary judge intends to provide access to some at least of the documents. The fact that the judgment was delivered in closed court is no doubt of some assistance, in that any level of public humiliation will be minimised, but the inadvertent disclosure of information not being released, to the very party who seeks it, remains an issue. The order in fact made restricted the documents to be disclosed to a period commencing in 2002 through to 2005. His Honour disclosed that he could not find records going beyond 2005, thus potentially providing further information as to the contents of the documents.

71 His Honour noted that "counsel for the accused was rather coy about volunteering information that might assist me to understand what the issues were in the trial": that coyness continued on appeal. He accepted, however, that they would include "issues of consent in the general sense": Judgment, p 6. In terms of the matters relied upon by the respondent, his Honour noted the following propositions:

(a) the material was likely to have substantive probative value because it contained detail of the medical histories, diagnoses, medications, effects of medications and other matters capable of reflecting upon the behaviour of the complainant;

(b) the seriousness of the charges brought against the accused.

72 The applicant's submissions centred upon the effect on her of disclosure of current treatment, the obtaining of future treatment and the effect of giving evidence.

73 The primary judge discounted the concerns of the complainant on the basis that they largely reflected the fears of giving evidence of highly traumatic events, rather than disclosure of specific information contained in the medical records. His Honour noted that she had already made disclosure of her psychological conditions both to an acquaintance, a friend and to the police. He then referred to the notes of the treating counsellor as "entirely uncontroversial" in the context of material that was described as being "in the public domain": Judgment, p 19. He noted that the most recent of the notes was more than five and a half years old. He concluded that whilst there would be a "reasonable expectation of privacy", which would be "reasonably anticipated by the complainant, or any patient, it does not of itself or in conjunction with the other matters to be taken into account, prevent a grant of leave": Judgment, p 20.

74 Although the questions raised by ss 298 and 299D of the Criminal Procedure Act involve questions of evaluative judgment, in my view the primary judge erred in three respects.

75 First, there is a question, encapsulated in paragraphs (a) and (b) of s 299D(1), as to whether the information contained in the documents will have substantive probative value. As the trial judge noted, aspects of the complainant's medical history and medical state at the time of the offending were known to the police and thus to the respondent. Whatever additional material was available from records which were more than five years old at the date of the alleged offences could not, in my view, have added substantial weight to the known information which did have substantial probative value, namely the information current at the time of the offence.

76 Secondly, it was necessary to focus on that which was to be put in the other side of the balance, namely the public interest in preserving the confidentiality of protected confidences and of protecting the applicant from harm in the event of disclosure of the contents of the documents. In circumstances where none of the documents related to contemporaneous counselling or counselling with respect to the offences the subject of the charges, it was appropriate to conclude that the potential harm to the applicant was limited. However, no weight appears to have been given to the possible effects upon the complainant in respect of future treatment in circumstances where the need for further counselling in respect of what his Honour described as "highly traumatic events" could not be discounted.

77 More importantly, however, there was an absence of weight given to the apparent purpose of the provisions to protect all counselling communications, including those which pre-dated the alleged offences, and to ensure public confidence in the ability of a victim to prevent access to such material, except in circumstances where disclosure was demanded by its substantial probative value. The deterrent effect on others through a perception that disclosure is readily achieved, may undo the purpose of the statutory privilege.

78 Thirdly, the primary judge had to be satisfied that the public interest in protecting confidences was "substantially outweighed" by the public interest in admitting the relevant information into evidence. A finding of substantial probative value would not have been sufficient, it being a precondition to the balancing exercise, rather than a determinative factor. The balancing exercise required does not, as the respondent argued in respect of the constitutional challenge, lead to any foregone conclusion in a particular case, but it was a factor which did not receive specific attention in the conclusions reached by the primary judge.

79 The specific counselling communications were properly described as having "some antiquity" and in one sense as being "entirely uncontroversial". Those descriptions demonstrated that they did not carry substantial probative value. For that reason the decision should be set aside.

80 As already indicated, the matter was approached in the District Court as if it were an application for access to documents properly produced to the Court. This Court also has had access to the documents for the purposes of the appeal. It was entitled to have regard to the documents pursuant to s 299B(4), as was the primary judge. However, the proper order to make in the circumstances is that the documents should not have been produced to the Court and the subpoena seeking to compel production, issued without leave of the Court, should be set aside. The documents should be returned to the Cumberland Hospital.

81 The Court should make the following orders:

(1) Allow the appeal.

(2) Set aside the orders of Norrish DCJ dated 8 May 2012.

(3) Set aside the subpoena dated 19 April 2012 addressed to the Health Information and Records Service, Cumberland Hospital.

(4) Return the documents produced pursuant to the subpoena to the Cumberland Hospital.

82 HARRISON J: I agree with Basten JA.

83 BEECH-JONES J: I have read the judgment of Basten JA. I agree with his Honour's reasons. I will make some additional comments which relate to the practicalities of the operation of Part 5 Division 2.

84 Much of the argument concerning Part 5 Division 2 centered upon the apparent difficulties in the application of s 299D at the point of seeking leave to issue a subpoena or other compulsive process under s 298(1). In particular it was queried as to how the Court could be satisfied that the document or evidence sought to be produced by the subpoena has substantial probative value and was otherwise not available to the accused even before the subpoena was issued? This is particularly the case so it was said because there was no means by which the Court could inspect the documents before the subpoena was issued to enable it to be appropriately satisfied that the criteria in s 299D(1) were established.

85 Two points should be noted in relation to this. The first is adverted to by Basten JA at [28]. The Court is empowered by s 299B(4) to make an order requiring the production of the documents to itself. This would include an order directed to third parties. In so ordering the Court is not bound by s 297 and 298 (s 299B(5)). There are obvious logistical issues raised by the making of such an order including how it is to be served, who by and who bears the cost of compliance. Senior Counsel for the Attorney General appeared to accept that the making of some regulations to facilitate such a process was warranted. In the absence of that occurring then it seems to me that the Court could require the Crown to take out and effect service of an order requiring the production of documents to itself for this purpose.

86 The second point is that the apparently high threshold presented by the criteria in s 299D may not be as difficult to overcome as first appears if the relevant application was supported by evidence identifying the accused's defence to the relevant allegation, what the accused expects will be obtained from the material sought to be produced or inspected and what other documents or evidence are or are not available relating to those issues and the material sought. That is not to say that those matters must be deposed to before such an application will be granted but, as a practical matter, if they were an application for leave would appear to have a greater chance of success. Of course the decision to disclose those matters cannot be forced upon an accused and the decision to do so would no doubt represent a difficult forensic choice. However, all forms of litigation involve difficult forensic choices and the effect of these provisions may only be to require that they be made earlier if documents are sought in advance of the trial.

87 In this case and consistent with s 299B(1) I have "consider[ed]" the material produced on subpoena. In the absence of knowing any of what the accused's response is to the crown case, what it is expected that the material sought will reveal or what other documents or evidence are or are not available to the accused relating to that material I am not satisfied that the criteria in s 299D(1) have been satisfied.

88 Further, during argument reference was made to a scenario whereby a subpoena was issued which on its face did not suggest that a document containing a protected confidence was being sought (and may not have been by the issuer) and in respect of which leave was not sought under s 298(1) but which nevertheless resulted in the production to the Court of a document containing such a confidence. In those circumstances there would be great inconvenience if the result was that the entire subpoena should be set aside with immediate effect and all documents that were produced be returned. It follows from the comments of Basten JA at [29], with which I agree, that in such a case any potential irregularity that occurred by reason of the issue of the subpoena without leave would not prevent the Court from then proceeding to consider the next step of whether leave should be granted to allow production of the document to a party under s 298(2).

89 I agree with the orders proposed by Basten JA.

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Amendments

30 January 2014 - Typographical errors: amended "identify" to "identity" in [66]; deleted "much" before "a greater" in [86]
Amended paragraphs: [6]], [86]

Decision last updated: 30 January 2014