Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: PPC v Williams [2013] NSWCCA 286
• Hearing dates: 11 October 2013
• Decision date: 18 November 2013
• Before: Gleeson JA at [1]; R A Hulme J at [98]; Adamson J at [99]

Decision

(1) Grant the applicant leave to appeal, pursuant to s 5F(3AB) of the Criminal Appeal Act 1912, from the interlocutory judgment of the District Court delivered on 2 August 2013.

(2) Appeal allowed.

(3) Set aside the orders of McClintock DCJ dated 2 August 2013, except insofar as the orders permit access to the parties' legal representatives only to such of the subpoenaed documents in respect of which the applicant made no objection to access being granted (being those documents tagged by the applicant's solicitor with a green coloured flag for the purpose of identification).

(4) The application for leave to produce documents under s 298(2) of the Criminal Procedure Act 1986 is referred back to the trial judge for reconsideration in the light of this Court's rulings.

• Catchwords: CRIMINAL LAW - interlocutory appeal - Criminal Procedure Act 1986 Chapter 6, Division 5, Part 2 - sexual assault communications privilege - issue of subpoena of documents subject to leave - where confidential affidavits provided - whether the trial judge erred in his approach to the assessment of substantial probative value - whether trial judge erred because he failed to undertake the balancing exercise in s 299D(1)(c) - whether trial judge erred in allowing access to material without considering whether it was inadmissible under s 293 as disclosing a prior sexual history
• Legislation Cited: Children (Criminal Proceedings) Act 1987 s 15A; Crimes Act 1900 ss 61J, 66C, 578A; Criminal Appeal Act 1912 s 5F; Criminal Procedure Act 1986 ss 3, 293, 295, 296, 298, 299, 299A, 299B, 302
• Cases Cited: House v The King [1936] HCA [40]; 55 CLR 499; KS v Veitch (No 2) [2012] NSWCCA 266; NAR v PPC1 [2013] NSWCCA 25; Queanbeyan City Council v Environment Protection Authority [2011] NSWCCA 108; R v Einfeld [2008] NSWCCA 215; 71 NSWLR 31
• Category: Interlocutory applications
• Parties: PPC (Applicant); Jesse Williams (Respondent); Director of Public Prosecutions (watching brief)
• Representation: Counsel: M Johnston (Applicant); P Skinner (Respondent); Solicitors: SCT Lawyers (Applicant); George Sten & Co (Respondent); Office of the Department of Public Prosecutions (watching brief)
• File Number(s): 2012/108417
• Publication restriction: No

Decision under appeal

• Jurisdiction: 9101
• Date of Decision: 2013-08-02 00:00:00
• Before: McClintock DCJ
• File Number(s): 2012/108417

Judgment

1 GLEESON JA: The applicant is the complainant in respect of a charge of aggravated sexual assault brought by the Director of Public Prosecutions, against the respondent. Following an incident at the trial of the respondent, in which the cross-examination of the applicant was adjourned, the prosecution made a disclosure to the defence. There were indications and information that the applicant was on medication. Ultimately, that led to the discharge of the jury and a new trial has been set down.

2 The respondent sought and obtained leave to issue subpoenas relating to the complainant's medical and psychiatric condition, under s 298(1) of the Criminal Procedure Act 1986 (the Act). Following the production of the subpoenaed material to the Court, the respondent sought leave to allow production of such material to the respondent and the Director of Public Prosecutions. The trial judge granted access to the subpoenaed material under s 298(2) of the Act, subject to the exclusion of some documents. The access was limited to the legal representatives of the parties.

3 The applicant seeks leave to appeal, pursuant to s 5F(3AB) of the Criminal Appeal Act 1912, against the decision of the trial judge to allow production of part of the subpoenaed material to the parties' legal representatives.

4 The applicant's name has been anonymised having regard to s 578A of the Crimes Act 1900, which prohibits the publication of any matter that would identify the complainant in prescribed sexual offence proceedings, the definition of which includes an offence under s 61J and s 66C of the Crimes Act: see the definition of "prescribed sexual offence" in s 3(1) of the Criminal Procedure Act 1986.

5 Section 15A of the Children (Criminal Proceedings) Act 1987 similarly prohibits publication of the applicant's name, as she was a child aged 14 when the alleged offences are said to have taken place.

6 For the reasons given below, leave to appeal should be granted, the appeal should be allowed and the orders of the trial judge should be set aside (except insofar as those orders allow access to those parts of the subpoenaed material in respect of which no objection was taken by the applicant). The application for leave to allow production of the balance of the subpoenaed material should be referred back to the trial judge for reconsideration in the light of this Court's ruling.

Procedural Background

7 The trial before a jury began on 21 January 2013 before his Honour Judge McClintock. The respondent was indicted on a charge that in December 2010 he did have sexual intercourse with the complainant without her consent, in circumstances of aggravation, the complainant being 14 years old, contrary to s 61J(d) of the Crimes Act. There was an alternative charge of sexual intercourse with a person above the age of 14 years and under the age of 16 years, contrary to s 66C(3) of the Crimes Act.

8 On the third day of the trial the cross-examination of the applicant was adjourned over concerns about her welfare, with the trial judge noting that "she did not appear to be responding at all" (Tcpt 23/1/13 p 103). The trial continued and the applicant's cross-examination was completed the following day. On 29 January 2013, the Crown advised the Court that the applicant had taken antipsychotic medication after she had experienced difficulties responding in cross-examination (Tcpt 29/1/13 p 166.5-16). Information also emerged about the applicant's medical and psychiatric history that pre-dated the alleged offence. The jury were discharged the next day.

9 Proceedings were then commenced by the respondent under Chapter 6, Part 5, Division 2 of the Act in regard to documents which are the subject of sexual assault communications privilege. Section 299A of the Act provides that the applicant has standing in proceedings which seek the production of documents that may disclose a "protected confidence", as defined by s 296 of the Act: see [21]-[22] below. Accordingly, the applicant was represented throughout these proceedings.

10 On 24 May 2013, the respondent sought leave under s 298(1) of the Act to issue a number of subpoenas. Leave was required because the material produced was likely to include a "protected confidence" as defined by s 296 of the Act. The subpoenas were to be issued to the Lawson Clinical Depression and Bipolar Disorder Specialists, Linfield Medical Practice, Headspace Central Sydney, Child Adolescent Mental Health Service at Hornsby Hospital and Dr Kam Wong at the Sydney Metta Clinic. The subpoenas requested copies of:

(1) records of any diagnosis made in relation to the patient;

(2) records of test results;

(3) records of prescription medications issued to the patient, and

(4) records of patient compliance on prescription medications.

11 The trial judge delivered judgment on 24 May 2013, granting leave for issue of the subpoenas. It appears that material was produced in response to each of the subpoenas, except by the Lawson Clinic.

12 On 29 July 2013, the trial judge heard an application by the respondent for leave to allow production of the documents under s 298(2) of the Act, that is, to allow the parties access to the subpoenaed material. This was opposed by the applicant. For the purposes of dealing with this application for production, the applicant's solicitor was provided with access to the documents, presumably under s 299B(4): see NAR v PPC1 [2013] NSWCCA 25 at [31].

13 The applicant provided the trial judge with a confidential submission setting out the grounds of objection to the grant of leave to produce the documents under s 298(2). For the assistance of the trial judge, the applicant's solicitor tagged the documents produced on subpoena with the following colour code:

(1) pink flag: indicated objection was taken on the ground that the document disclosed prior sexual history and was inadmissible under s 293 of the Act;

(2) yellow flag: indicated objection was taken on the ground of sexual assault communications privilege. Objection was also taken on the ground of relevance;

(3) green flag: indicated no objection was taken to production.

14 The trial judge adjourned the proceedings to 1 August 2013 to consider these submissions. On that date, his Honour gave an ex tempore judgment granting access to the legal representatives of the parties only, subject to the exclusion of "substantially irrelevant" material. He stayed his decision to allow the solicitor for the applicant a further opportunity to inspect the documents and make submissions on allowing access to the parties' legal representatives.

15 Further confidential submissions were filed by the applicant on 2 August 2013, together with a confidential affidavit by the applicant specifying the harm she was likely to suffer, if access were allowed to the material. The applicant's solicitor also tagged a number of documents with a blue flag. This was to indicate that objection was taken to the production of such documents on the grounds of irrelevance and no substantial probative value, as they were rendered inadmissible under s 293 of the Act because they related to prior sexual history.

16 The trial judge delivered an ex tempore judgment on 2 August 2013 granting the parties' legal representatives only access to the subpoenaed material which had been marked with a blue flag, except for a limited number of such documents.

Sexual assault communications privilege

17 The scheme of the sexual assault communications privilege established by Chapter 6, Part 5, Division 2 of the Act, including the prohibitions with respect to producing documents or adducing into evidence in a criminal proceeding a document recording or revealing a "protected confidence", except with the grant of leave, has been recently considered by this Court in KS v Veitch (No 2) [2012] NSWCCA 266 and NAR v PPC1.

18 Neither party takes issue with the Court's construction of the relevant provisions of Chapter 6, Part 5, Division 2 of the Act, in particular, s 298, s 299B and s 299D of the Act, in KS v Veitch (No 2) and NAR v PPC1.

19 Further, there is no issue on the present application that the documents produced in response to subpoenas by a number of medical and psychiatric practitioners that have treated the applicant, included "protected confidences" as defined by s 296 of the Act. Nor is there any dispute that the applicant was a "protected confider", as defined by s 295 of the Act.

20 It is sufficient for the present case, to note the following features of the privilege established by Chapter 6, Part 5, Division 2 of the Act.

Scope of the privilege

21 First, the scope of the privilege established by the Act applies to a "protected confidence". This is defined by s 296(1) as meaning a "counselling communication that is made, by, to or about a victim or alleged victim of a sexual assault offence".

22 The term "counselling communication" is defined in s 296(2) to s 296(5). It is sufficient for present purposes to note the terms of s 296(2) and s 296(4) which provide:

"296 What is a protected confidence?

...

(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.

...

(4) In this section:

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.

... ."

The prohibition

23 Secondly, at the core of the present application is the prohibition in s 298 which provides:

"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."

24 It has been observed that s 298 provides a tripartite structure which operates to prohibit the issue of a subpoena; the production of a document to the Court in answer to a subpoena; and the adducing of evidence recording or revealing a protected confidence, except with the grant of leave: KS v Veitch (No 2) at [23] per Basten JA.

The s 299D requirements

25 Thirdly, the power of the Court to grant leave to take any of the steps contemplated by s 298, including allowing access to subpoenaed documents under s 298(2), is circumscribed by the operation of s 299D, which provides:

"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."

26 Fourthly, the test to be applied under s 299D in the regulation of the production of documents and the adducing of evidence is the same. In both cases, for the purpose of assessing the balance between the two competing public interests as required by s 299D(1)(c), it is to be assumed that the information contained in the documents will in fact be admitted into evidence in one form or another: KS v Veitch (No 2) at [35]. How that assumption is to operate at the production of documents stage may present a difficult task for the Court, particularly in light of the inadmissibility of material referring to prior sexual history under s 293 of the Act, unless it falls within one of the exceptions provided under s 293(4) or 293(6).

Procedural matters

27 Fifthly, certain procedural aspects of an application for leave under s 298 are dealt with in s 299B, which provides:

"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."

28 Section 299B enables the Court to have access to the relevant 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). Those powers extend to permitting a "protected confider" to have access to a document without the necessity of considering whether the criteria for the grant of leave in s 299D have been satisfied: NAR v PPC1 at [31]. This occurred in the present case, and facilitated the provision of the applicant's confidential submissions and the tagging of the subpoenaed material by the applicant's solicitor, as referred to at [13] and [15] above.

29 Further, s 299B(3)(b) confirms that the preconditions for the grant of leave specified in s 299D must be satisfied before access to subpoenaed documents recording a protected confidence can be granted to a party, "other than a protected confider": NAR v PPC1 at [31]. "Protected confider" relevantly includes the "victim or alleged victim of a sexual assault offence by, to or about whom a protected confidence is made": s 295.

30 Section 299B(3)(b) has significance in the present case because one of the arguments advanced by the respondent in support of the orders made by the trial judge would, if accepted, be contrary to the emphatic language of that provision: see [93] below.

Inadmissible evidence

31 Sixthly, subject to certain exceptions in s 293(4) and s 293(6), evidence concerning a complainant's sexual experience, or lack of it, are rendered inadmissible by s 293(3), which provides:

"293 Admissibility of evidence relating to sexual experience

...

(3) Evidence that discloses or implies:

(a) that the complainant has or may have had sexual experience or a lack of sexual experience, or

(b) has or may have taken part or not taken part in any sexual activity,

is inadmissible."

32 It is unnecessary to set out the detail of the exceptions to the inadmissibility of evidence of prior sexual history under s 293(4) and s 293(6).

Substantial probative value

33 Seventhly, the concept of "substantial probative value", accepting that it extends to questions or evidence relevant to the credibility of the complainant, must nevertheless be concerned with admissible material: KS v Veitch (No 2) at [37]; NAR v PPC1 at [29]. Thus, the restrictions on the admissibility of material concerning a complainant's sexual experience or lack of it, as found in s 293, also engage the requirements in s 299D(1): KS v Veitch (No 2) at [37]; NAR v PPC1 at [29].

Ancillary orders

34 Eighthly, reference also needs to be made to s 302 of the Act, which deals with ancillary orders and provides:

"Ancillary orders

(1) Without limiting any action the court may take to limit the possible harm, or extent of the harm, likely to be caused by the disclosure of evidence of, or the contents of a document recording, a protected confidence, the court may:

(a) order that all or part of the evidence be heard or document produced in camera, and

(b) make such orders relating to the production and inspection of the document as, in the opinion of the court, are necessary to protect the safety and welfare of any protected confider."

35 In the present case, the trial judge's order limiting access to the parties' legal representatives only was made pursuant to s 302.

The judge's reasons

Judgment of 1 August 2013

36 In his first judgment of 1 August 2013, the trial judge recorded (at p 2) that the subpoenaed material may be broadly described as a series of files relating to the medical and psychiatric treatment and attendant counselling of the applicant in the period before and after the alleged commission of the offence by the respondent. His Honour noted that the material contained a series of events as disclosed by the applicant together with a series of documents provided by the applicant; a series of diagnoses; the listing of symptoms, most of which came from either histories given by the applicant or material supplied by third parties, including relatives.

37 The trial judge also recorded (at p 2) that the issues in the trial concern the applicant's account, which so far as it concerned lack of consent, was not corroborated or confirmed by any independent evidence. His Honour noted that the defence outlined by counsel for the respondent indicated that sexual intercourse did not take place.

38 The issues raised by the defence as noted by the trial judge (at p 3), related to the reliability and truthfulness of the applicant's account, her veracity in terms of incidents not directly related to the incident in issue in the trial and general issues in respect of her overall credit. The trial judge observed (at p 3) that material in the subpoenaed documents contained within it a series of diagnoses which "give rise to concerns about the stability and reliability of the applicant and also concerns about whether the applicant is capable, or indeed does confabulate, described in much more extreme terms such as hallucinations". The trial judge found (at p 3) that:

"The totality of the material fulfils the test of substantial probative value."

39 His Honour reasoned (at p 4) that "the material has to be read in totality to make it comprehensible". He went on to find (at p 4) that subject to the excision of material that might be regarded as "substantially irrelevant or irrelevant" to the issue of substantial probative value, the material had substantive probative value both as to facts in issue, the issue of consent, the reliability of the complainant's evidence and issues of credit.

40 His Honour's approach to the assessment of "substantial probative value" is the subject of Ground 1 of the proposed appeal.

41 The trial judge stated (at p 5) in relation to the paragraph (c) requirement in s 299D(1):

"In other words, a decision has to have already been made under (a) as to the existence of probative value and then the issue is the admission into evidence of the information. That provision seems to have application only to the third part of the process, that is adducing of the evidence". (emphasis added).

42 His Honour's reference to the "third part of the process" is to be understood as a reference to the prohibition in s 298(3), that 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", except with the leave of the Court.

43 His Honour went on to observe (at p 5) that:

"Notwithstanding that finding, it is a relevant matter to take into account the totality of s 299D(2) ...",

and then set out the terms of that provision without elaborating any further.

44 His Honour noted (at p 5) that s 299D(3) provided that 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. His Honour also noted that he had received such a document on the application and stated that he had taken that document into account.

45 Ground 2(a) of the proposed appeal contends that the trial judge erred in finding that s 299D(1)(c) was only applicable at the time of determining whether evidence could be adduced under s 298(3). Grounds 2(b) and (c) contend that the trial judge also erred in failing to properly take into account the s 299D(2) factors and the confidential affidavit of the applicant provided under s 299D(3).

46 The trial judge correctly observed (at p 6) that material referring to a prior sexual history is inadmissible under s 293 of the Act, unless it fell within one of the exceptions provided under s 293(4) and s 293(6). However, the trial judge deferred consideration of this issue to the stage of adducing of evidence at the trial. His Honour considered (at p 6) that there was no bar, apart from the Division 2 process, for the production of the subpoenaed material and stated that "other criteria" were to be applied in respect of the adducing of such evidence. The reference by his Honour to "other criteria" appears to be a reference to the exceptions to inadmissibility of documents concerning prior sexual history, under s 293(4) and s 293(6).

47 It is with respect to the deferral of the consideration of the s 293 issue that Grounds 3(a), (b) and (c) of the proposed appeal are directed.

48 Having decided to allow access to the subpoenaed materials, his Honour noted (at p 6) that the order he proposed to make under s 302 of the Act would limit such access to the parties' legal representatives only.

Judgment of 2 August 2013

49 In his second judgment, the trial judge ruled on the applicant's objection to access being granted to certain documents which had been marked by the applicant's solicitor with a blue tag, as referred to at [15] above.

50 His Honour upheld some of the objections and declined to allow access to a small number of documents. Consistently with his previous ruling on 1 August 2013, his Honour allowed access to the balance of the documents in respect of which the applicant objected to access being granted on the grounds inadmissibility under of s 293, notwithstanding that he acknowledged that at least some of the documents gave rise to such an issue. This acknowledgement specifically related to documents produced by the Northern Sydney Central Coast Area Health Service concerning various alleged sexual assaults unrelated to the charges against the respondent (at p 1); and documents produced by the Northern Sydney Central Coast Area Health Service containing material referable to the applicant's conduct prior to the alleged sexual assault by the respondent (at p 6).

Leave to appeal

51 It is to be accepted that one of the principal reasons for subjecting appeals from interlocutory orders in criminal cases to a requirement to obtain leave is to prevent or minimise the fragmentation of the process of criminal justice: R v Einfeld [2008] NSWCCA 215; 71 NSWLR 31 at [23].

52 Generally, leave to appeal an interlocutory decision of the present type should not readily be granted, unless an appropriate case is made out of an error of principle, which is apt to cause an irregularity or an injustice: Queanbeyan City Council v Environment Protection Authority [2011] NSWCCA 108 at [25] per Whealey JA (Hall and McCallum JJ agreeing).

53 In my view, this application raises an important question as to the proper construction of the requirements of s 299D(1) at the stage when leave is sought under s 298(2) to obtain access to a document in criminal proceedings to which sexual assault communications privilege attaches. There is also an important question as to the interaction between the requirements of s 299D(1) and the inadmissibility of evidence relating to prior sexual history (subject to limited exceptions) under s 293 of the Act. Leave to appeal should be granted.

Grounds of appeal

Ground 1 - Error in the assessment of substantial probative value

54 Ground 1 contends that his Honour erred in his approach to the assessment of the substantial probative value of the subpoenaed material.

55 This contention is primarily directed to the following passage of his Honour's preliminary judgment of 1 August 2013 (at p 4):

"At this stage I am required under 299D to make a decision in respect of 299D(1) which is 'whether the evidence or document, either by itself or having regard to other documents or evidence produced or to be adduced by the party seeking produce or adduce the documents, have substantial value'. For the reasons I have outlined the material has to be read in its totality to make it comprehensible. Subject to the excision of material that might be substantially irrelevant or irrelevant to the issue of substantial probative value which I allow by staying the execution of this judgment for a period - I find that it does have substantial probative value both as to the facts in issue, the issues in the trial particularly the issue of consent, the reliability of the complainant's evidence and issues of credit."

56 This passage of the judgment is to be read together with the later statement of his Honour (at pp 6-7):

"However there may be material that a final claim may be made by the confider's representative and I am prepared to stay the order for a day so that a final review of the material, which, as I say, is voluminous, can be undertaken and any final claim for exclusion on the basis that it does not fit my ruling can be made."

57 The applicant submitted that the trial judge erred in finding that "the totality of the material fulfils the test of substantial probative value". This finding was said to be erroneously premised on his Honour's view that all of the "material has to be read in its totality to make it comprehensible". It was submitted that the inclusive approach adopted by the trial judge, placed undue weight on admitting all documents so as to create a complete picture, rather than focusing on particular documents that satisfy the requirement of substantial probative value.

58 The applicant submitted that much of the subpoenaed material is too remote in time, too remote in content or otherwise ultimately inadmissible. For these reasons, it was contended that it was not necessary to produce the applicant's entire medical and psychiatric history in order to comprehend a recent diagnosis, nor was it necessary to produce years of counselling notes in order to assess issues of the applicant's reliability and credit.

59 The applicant further submitted that the approach adopted by the trial judge effectively reversed the purpose of the statutory regime by considering all documents to have substantial probative value, subject to the applicant identifying documents that might be "substantially irrelevant or irrelevant".

60 In this regard, the applicant had accepted before the trial judge, that some of the subpoenaed material was relevant to the diagnosis of the applicant and relevant to her overall credit, and accordingly it was open to his Honour to find that some documents had substantial probative value. However, the applicant did not accept that all the material produced was capable of being so characterised.

61 The applicant pointed, by way of example, to medical documents produced by the Lindfield Medical Centre which contained general practitioner's records apparently from 1999, when the applicant was 3 years old, through until the present day. In respect of these documents, the applicant had provided written consent under s 300 of the Act to the production of two documents dated 5 December 2010 and 15 December 2010. The applicant's complaint was that her medical history before that date had little, or no probative value, and did not satisfy the paragraph (a) requirement of s 299D(1).

62 In relation to material produced by Dr Kam Wong, the applicant submitted that a significant amount of material covered the period of the applicant's junior schooling and was largely irrelevant.

63 In relation to material produced by the Northern Sydney Central Coast Area Health Service, the applicant submitted that this related to multiple admissions of the applicant for treatment. The applicant accepted that some material, particularly that related to recent admissions, mental health diagnosis and the use of medication, might have substantial probative value. However, it was contended that the balance of the material disclosing past sexual experience, suicide attempts and counselling notes from earlier admissions had little or no probative value, and did not satisfy the paragraph (a) requirement of s 299D(1).

Consideration

64 This Court is limited on this appeal to the description of the subpoenaed documents given in the applicant's confidential submissions provided to the trial judge, as broadly summarised by his Honour (at p 2) in his judgment of 1 August 2013. The Court has not been provided with the subpoenaed documents for inspection. Those documents were however inspected by the trial judge. Having regard his Honour's description of the material, there is no reason to doubt the applicant's description of the documents in her confidential submissions to the trial judge.

65 In my view, his Honour was in error in adopting an inclusive approach to the assessment of substantial probative value. The error in his Honour's approach is apparent from two matters.

66 First, the characterisation of the "totality" of the material as fulfilling the test of "substantial probative value" failed to take into account the apparent lack of relevance of those documents identified, by way of example, in the applicant's submissions referred to above, as being too remote in terms of either time or context.

67 Furthermore, the approach of allowing access to documents in their "totality" to make some of the material comprehensible, is inconsistent with the focus required by the more restrictive approach in s 299D(1)(a). This requires satisfaction of the "substantial probative value" test in respect of each document in respect of which access is allowed to the parties, rather than the broader "legitimate forensic purpose" test generally applied to production of documents under subpoena: KS v Veitch (No 2) at [32].

68 Secondly, the assessment of "substantial probative value" was undertaken by his Honour without regard to whether the documents may not be admissible in evidence by virtue of s 293 of the Act. Although this matter is the subject of specific complaint under Grounds 3(a), (b) and (c), it is also of significance under Ground 1. This is because the assessment of "substantial probative value" under s 299D(1)(a) must be concerned with material that is ultimately admissible: KS v Veitch (No 2) at 266 [37]; NAR v PPC1 at [29].

69 It may be accepted that, in assessing whether the subpoenaed material had substantial probative value, the trial judge was confronted with a difficult task. His Honour was required to assess an apparently large number of documents including medical records and other materials relating to the applicant, covering a broad period and dealing with a number of discrete incidents and a range of medical and psychiatric issues. A number of the incidents were unrelated to the incident giving rise to the charges against the respondent. It is understandable that some of the material may not have been readily comprehensible. Nonetheless, such difficulties do not warrant an inclusive approach to be taken to the assessment of substantial probative value. It was necessary for his Honour to be satisfied that each document, or category of documents where documents related to the same incident or issue concerning the applicant, satisfied the paragraph (a) requirement in s 299D(1) of the Act.

70 Ground 1 should be upheld.

Grounds 2(a), (b) and (c)

Error in non-application of the s 299D(1)(c) requirement; failing to properly take into account the s 299D(2) factors; and failing to properly take into account the confidential affidavit

71 Grounds 2(a), (b) and (c) contend that the trial judge erred in failing to consider the paragraph (c) requirement of s 299D(1), when determining whether to grant leave to produce documents under s 298(2), and thus the trial judge's exercise of discretion miscarried. It is also contended that his Honour erred by failing to properly take into account the s 299D(2) factors and the applicant's confidential affidavit.

72 The Court's satisfaction of the requirements in s 299D(1) is a precondition of the exercise of the discretionary power under s 298(2) to allow access to the subpoenaed material to the parties. The discretionary decision of the trial judge to allow access to the subpoenaed material is reviewable in the present case, relevantly, if the judge acted upon a wrong principle or if he did not take into account some material consideration: House v The King [1936] HCA [40]; 55 CLR 499 at 505.

73 The error in the trial judge's approach is said to be revealed in the passages of the judgment of 1 August 2013 (at p 5) referred to at [41]-[44] above where, in reference to the s 299D(1)(c) requirement, his Honour stated that this only had application at the later stage of seeking leave to adduce evidence under s 298(3).

74 The respondent submitted that there was no error by the trial judge in failing to apply the paragraph (c) requirement, because his Honour referred to the s 299D(2) factors as a relevant matter and stated that he had taken the confidential affidavit into account. However, this submission ignored the terms of the paragraph (c) requirement.

75 This required his Honour to consider the two competing public interests, with access to the subpoenaed material being conditional upon the public interest in protection of confidences being "substantially outweighed" by the interest in admitting the material into evidence. As explained by Basten JA in KS v Veitch (No 2) at [34], 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.

76 It is tolerably clear, in my view, that his Honour erred in his approach to the paragraph (c) requirement of s 299D(1), because he considered that it only had application at the later stage of adducing of evidence under s 298(3), with a grant of leave. The correct position is that the paragraph (c) requirement also applies at the earlier stage of allowing access to the subpoenaed material under s 298(2).

77 The trial judge erred, in my view, because he did not undertake the balancing exercise required by the paragraph (c) requirement. This includes, but is not limited to, taking into account the s 299D(2) factors, when determining the public interest in preserving confidentiality of the protected confidence and protecting the principal protected confider from harm. Although his Honour referred to the s 299D(2) factors as being a relevant matter, his reasons do not disclose whether he in fact took into account any of those factors, and if so, how those factors impacted upon his assessment of the balancing of the public interests referred to in the paragraph (c) requirement.

78 As to whether the trial judge failed to take into account the confidential affidavit, the applicant contends that he only took this into account when considering s 302 of the Act, and the appropriate limits to be placed on access to the subpoenaed material. His Honour's reasons are open to this interpretation. However, due to the brevity of those reasons, it is difficult to determine whether, and if so, how his Honour may have otherwise taken the confidential affidavit into account.

79 It is unnecessary to reach a concluded view on this particular complaint, in view of my conclusion that his Honour erred in finding that the paragraph (c) requirement in s 299D(1), was not relevant when considering a grant of leave for production under s 298(2).

80 Grounds 2(a) and (b) of the appeal should be upheld.

Grounds 3(a), (b) and (c)

Error in granting leave to produce material that may disclose prior sexual experience

Error in finding that material that may disclose a sexual experience in the circumstances of this matter had "substantial probative value"

Error by not applying s 299D(1)(c) to material that may disclose prior sexual experience.

81 Grounds 3(a), (b) and (c) contend that the trial judge erred in allowing access to subpoenaed material that may disclose a prior sexual history, notwithstanding the inadmissibility of such material under s 293 of the Act, unless it fell within one of the exceptions in s 293(4) or s 293(6).

82 In short, it was contended that the trial judge erred by deferring consideration of the s 293 admissibility issue to the stage of adducing evidence under s 298(3), with leave of the Court.

83 The relevant passage of the trial judge's reasons in his judgment of 1 August 2013 (at pp 6-7) stated:

"'So having taken into account all the matters required of me in respect of the division there is one subsequent matter that I need to deal with which is that the material discloses material that may not be 'adducible', if such a term exists, in evidence in the trial by virtue of s293 of the Criminal Procedure Act. That is material of prior sexual history.

In discussion with counsel I have concluded that there is no bar, apart from the Division 2 process, for the production of such material. Other criteria are to be applied in respect of the adducing of such evidence. There are certain rigid tests and an overriding, I will call it discretionary although it may simply be a test on its own, for the use of that material in a trial. That point has not been reached. Therefore I will allow access to the material which seems to me to be intimately bound up with the issues to which I have already referred. In this predictive phase they do have substantial value.

However there may be material that a final claim may be made by the confider 's representative and I am prepared to stay the order for a day so that a final review of the material, which, as I say, is voluminous, can be undertaken and any final claim for exclusion on the basis that it does not fit my ruling can be made."

84 The applicant's submissions highlighted that the trial judge subsequently observed in his judgment of 2 August 2013, that there may be an issue in respect of s 293 in respect of some of the material produced by the Northern Sydney Local Health District (at p 1) and the North Sydney Central Coast Health Services (at p 6).

85 The trial judge's observation in respect of the s 293 issue was undoubtedly in response to the particular objections taken by the applicant's solicitor on 2 August 2013, to material marked with blue tags that included prior sexual experience, prior medical issues related to sexual experience and prior sexual assaults. The applicant submitted before the trial judge that such material "would have no purpose but to embarrass, shame and humiliate the complainant".

86 It is clear that the trial judge did not address the s 293 issue either on 1 or 2 August 2013 when considering whether to allow access to the subpoenaed materials. This was because his Honour took the view that s 293 was only relevant at the subsequent stage of adducing evidence at the trial.

87 In my view, his Honour's approach was in error.

88 The assessment of "substantial probative value" under s 299D(1), whether at the stage of allowing production under s 298(2) or the stage of adducing of evidence under s 298(3), must be concerned with material that is ultimately admissible: KS v Veitch (No 2) at 266 [37]; NAR v PPC1 at [29].

89 Evidence relating to sexual reputation, or disclosing or implying that the complainant may have had sexual experience, or lack of sexual experience, or may have taken part or not taken part in sexual activity, is inadmissible under s 293, unless one of the exceptions applies.

90 The restrictions on the admissibility of material concerning prior sexual assaults and prior sexual history, or lack of it, as found in s 293, also engage s 299D(1): NAR v PPC1 at [29]. It was necessary for his Honour to address the s 293 issue when determining whether the subpoenaed material had substantial probative value. Given that his Honour did not do so, it follows that Grounds 3(a), (b) and (c) should be upheld.

91 Counsel for the respondent contended that the trial judge adopted a pragmatic approach to Chapter 6, Part 5, Division 2 in dealing with the apparent difficulties in the application of s 299D(1) at the stage of allowing access to subpoenaed material under s 298(2). It was suggested that s 302, which permitted the making of ancillary orders, was wide enough to permit access to the parties' legal representatives only, notwithstanding the absence of satisfaction of the paragraph (a) requirement of s 299D(1), in circumstances where the s 293 issue had been deferred to the stage of adducing of evidence at the trial.

92 In my view, there is simply no warrant for such an approach to the requirements in s 299D(1).

93 First, it is inconsistent with the terms of s 299B(3)(b) which are set out at [27] above. The preconditions in s 299D(1) for the grant of leave under s 298(2) must be satisfied before access to subpoenaed materials recording a protected confidence can be granted to a party, other than a protected confider (such as the applicant). Access cannot be granted to the parties' legal representatives in advance of the Court being satisfied that the preconditions in s 299D(1) have been satisfied.

94 Secondly, to the extent that an application for access to subpoenaed material under s 298(2) raises issues under s 293, including the potential application of the exceptions to the inadmissibility of prior sexual history under s 293(4) and s 293(6), these must be addressed by the Court as part of the assessment of the "substantial probative value" requirement in paragraph (a) of s 299D(1).

95 Thirdly, the power to make ancillary orders under s 302 ought not be construed so as to circumvent the satisfaction of the preconditions in s 299D(1) to allowing production of subpoenaed material under s 298(3). Section 302 is predicated on the Court having been satisfied, relevantly under s 298(2), that documents should be produced and made available for inspection. That is, it is to be assumed that the preconditions in s 299D(1) have been satisfied. Section 302 is concerned with orders directed to limiting harm or potential harm from such disclosure of a "protected confidence".

96 If the evidence in support of the application for leave to access the subpoenaed material under s 298(2) does not permit the trial judge to reach a view on the admissibility issue raised by s 293, then generally, the appropriate course would be to defer the application for access under s 298(2) until a ruling on admissibility under s 293 is made. The timing of any such ruling, whether pre-trial or during the trial, is a matter for case management by the trial judge.

Orders

97 The orders that I propose are:

(1) Grant the applicant leave to appeal, pursuant to s 5F(3AB) of the Criminal Appeal Act 1912, from the interlocutory judgment of the District Court delivered on 2 August 2013.

(2) Appeal allowed.

(3) Set aside the orders of McClintock DCJ dated 2 August 2013, except insofar as the orders permit access to the parties' legal representatives only to such of the subpoenaed documents in respect of which the applicant made no objection to access being granted (being those documents tagged by the applicant's solicitor with a green coloured flag for the purpose of identification).

(4) The application for leave to produce documents under s 298(2) of the Criminal Procedure Act 1986 is referred back to the trial judge for reconsideration in the light of this Court's rulings.

98 R A HULME J: I agree with Gleeson JA.

99 ADAMSON J: I agree.

**********

Decision last updated: 05 June 2014