Citation: R v Joshua Veitch [2012] NSWDC 174
Court: District Court of New South Wales
Date: 8 May 2012
Judge: S Norrish QC DCJ
Background
The accused faced three charges arising from an incident on 18 May 2011 at Leichhardt: assault occasioning actual bodily harm, aggravated sexual intercourse without consent, and an alternative count of sexual intercourse without consent. The complainant was legally represented in these pre-trial proceedings.
Before the jury was empanelled, the accused's legal representatives had issued a subpoena to the Western Sydney Local Health District requiring production of hospital records relating to the complainant from Cumberland Hospital. The documents produced covered the complainant's medical and psychiatric history. The complainant applied to have the subpoena set aside, and the court was also required to consider whether the records attracted the sexual assault communications privilege under the Criminal Procedure Act 1986 (NSW).
Several pieces of contextual evidence informed the subpoena application: the complainant's own police statement referenced a prior head injury approximately ten years before the alleged offences; a urine analysis detected benzodiazepines and other medications in the complainant's system; and statements from witnesses contained references to the complainant's mental state and behaviour.
Legal Issues
- Whether the subpoena should be set aside for lacking a legitimate forensic purpose or constituting an impermissible "fishing expedition"
- Whether the subpoenaed records were protected by the sexual assault communications privilege as "protected confidences" under ss 295 to 306 of the Criminal Procedure Act 1986 (NSW)
- Whether, if the privilege applied, leave should nonetheless be granted under s 299D of the Criminal Procedure Act for access to some or all of the documents, applying the balancing test between the public interest in confidentiality and the public interest in the accused having access to material of substantial probative value
Decision
Setting aside the subpoena: The court declined to set aside the subpoena in its entirety. Norrish QC DCJ found there was a legitimate forensic purpose grounded in material already before the court, including the complainant's own references to her mental health history, the detection of multiple medications in her system, and witness observations about her behaviour and mental state. The court did, however, restrict the temporal scope of the subpoena to records from 1 January 2000 onwards, reflecting the approximately ten-year history of the head injury the complainant had disclosed.
Protected confidence: The court accepted that the records did attract the sexual assault communications privilege as protected confidences within the meaning of the relevant provisions of the Criminal Procedure Act 1986 (NSW). The complainant's communications with treating clinicians fell within the scope of those protections.
Leave under s 299D: Despite the privilege applying, the court was satisfied that leave should be granted for access to a portion of the material. Applying the balancing test in s 299D(1), the court found that the public interest in preserving confidentiality was substantially outweighed by the public interest in permitting access, given that the relevant material had substantial probative value and that comparable documents were not otherwise available to the accused.
However, the court did not grant access to all of the subpoenaed material. The court directed that material be edited to remove content that was clearly irrelevant, purely private, relating to remote sexual history events (some occurring seven to ten years before the alleged offences), repetitive, or of no substantive probative value. Nursing notes and certain pathology results were also excluded on the basis that they did not satisfy the balancing requirements.
Orders Made
• Leave granted to access edited counselling notes and related medical treatment records to the accused's legal representatives
• Material must be edited to remove irrelevant content, non-probative material, purely private matters, and repetitive content
• Nursing notes, pathology results, and pathology testing material that lacks substantive probative value to be excluded
• Material relating to sexual history occurring 7-10 years before the relevant events to be excluded
Key Takeaways
- A subpoena for a complainant's hospital records in a sexual assault trial is not automatically a "fishing expedition": where the complainant's own statements and other evidence in the Crown brief provide a factual foundation for the request, a legitimate forensic purpose can be established.
- Under ss 295 to 306 of the Criminal Procedure Act 1986 (NSW), communications with treating clinicians by a sexual assault complainant can constitute "protected confidences," attracting the sexual assault communications privilege even where the records are held by a public health facility.
- The s 299D balancing test requires the court to weigh the public interest in protecting the confidentiality of protected confidences against the public interest in the accused accessing material of substantial probative value. The absence of equivalent documents from other sources is a relevant consideration.
- Granting leave for access to subpoenaed protected-confidence material does not mean the accused receives the entirety of the documents produced. The District Court here confined access to material with genuine probative relevance, directing that irrelevant, purely private, and remote material be removed.
- Material relating to sexual history events occurring many years before the alleged offence was treated as unlikely to be admissible under s 293 of the Criminal Procedure Act 1986 (NSW) and was excluded from the material to which access was granted.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), ss 293, 295 to 306, s 299D
- Evidence Act 1995 (NSW), ss 55, 66
Cases:
- Commissioner for Railways v Small (1938) 38 SR (NSW) 564
- R v Saleam (1989) 16 NSWLR 14
- Alister v The Queen (1984) 154 CLR 404