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District Court 2 May 2013

R v Veitch

[2013] NSWDC 97

Sexual offencesAssault & violence
PROTECTED CONFIDENCES APPLICATION OF DIV 2 OF CPA OBSCURITY OF LEGISLATION "INJURY" ALLEGED AGGRAVATED SEXUAL ASSAULT CREDIBILITY OF CPLT IN ISSUE

Citation: R v Veitch [2013] NSWDC 97
Court: District Court of New South Wales
Date: 2 May 2013
Judge(s): Williams DCJ

Background

The accused faced charges of aggravated sexual assault, assault occasioning actual bodily harm, and a further assault, all alleged to have occurred on 18 May 2011. The accused did not dispute that sexual intercourse took place but maintained it was consensual. He also alleged the complainant attacked him afterwards, and that any injury she sustained occurred when he responded to that attack.

The complainant had a documented history of mental illness, including borderline personality disorder and bipolar type I disorder, and had been receiving psychiatric treatment prior to the alleged offence. That treatment was entirely unrelated to the alleged assault. The credibility of the complainant was a central issue in the proceedings.

This judgment followed an earlier ruling on 23 April 2013 in which Williams DCJ had declined to grant leave to issue a subpoena for certain records. Additional information had since come before the court, including court documents from separate assault proceedings against the complainant dealt with under mental health provisions, psychiatric reports, and psychotherapy notes produced in response to further subpoenas.

  • Whether pre-offence psychiatric counselling and treatment records constituted "protected confidences" under Division 2 of the Criminal Procedure Act, specifically given the definition of "harm" in section 295 and the apparent purpose of the legislation.
  • Whether the definition of "counselling communication" in section 296 extended to communications made before the alleged offence and unrelated to any sexual assault.
  • Whether, and on what terms, leave should be granted to access the produced records, balancing the potential unfairness to the accused against the interests protected under section 299D.
  • How section 108C of the Evidence Act applied to potential expert evidence about the complainant's mental health and its effect on her capacity to observe and recall events.

Decision

Williams DCJ found that the legislative provisions governing protected confidences were, to put it plainly, obscure. Section 296(2) explicitly extends protection to counselling communications made before the alleged offence and even to those unrelated to any sexual assault. His Honour noted the tension between this expansive provision and the definition of "counselling communication" in section 296(4), which ties the concept of counselling to persons who have "suffered harm," language that appears to contemplate harm arising from an offence rather than pre-existing mental illness.

His Honour declined to resolve the ambiguity definitively in either direction, observing that courts should be cautious about narrowing or expanding unclear criminal legislation where the result could operate to an accused's detriment. However, he considered it difficult to justify withholding records relating to treatment for a mental illness that pre-dated the alleged offence, particularly where the credibility of the complainant was squarely in issue and the potential use of the material was to inform expert psychiatric evidence under section 108C of the Evidence Act.

On the question of leave, His Honour balanced the genuine concerns expressed by the complainant in a confidential affidavit against the potential unfairness to the accused. The charges carried a standard non-parole period of ten years, and the consequences of conviction were therefore severe. Applying the approach endorsed by Basten JA in KS v Veitch (No 2), His Honour concluded that the scales tipped in favour of disclosure, subject to strict limitations.

Williams DCJ also addressed the scope of any expert evidence that might result. An expert could give general evidence about how a condition of the kind documented might affect a person's capacity to observe or remember facts and events, but could not give evidence as to how this particular complainant would have done so in the specific circumstances. This distinction flows from the structure of section 108C and the credibility rule under the Evidence Act.

Orders Made

  • Access to the produced psychiatric records was granted, subject to the following restrictions:
  • Access was limited to counsel for the accused and his instructing solicitor, Crown counsel and his instructing solicitor, and counsel for the complainant (who was to have first access to identify any further applications concerning the material).
  • The material was not to be copied except for the purpose of providing it to an expert psychiatric witness called in the proceedings.
  • All photocopied material was to be returned to the court or to the provider.
  • The ruling extended to additional material produced on subpoena from Westmead Hospital and Nepean Hospital.
  • Historic psychiatric material dating back to at least 1995 was included in the access order, on the basis it could assist an expert in understanding a complex clinical picture, notwithstanding that its direct relevance to events in 2011 was uncertain.

Key Takeaways

  • The District Court confirmed that sections 295 and 296 of the Criminal Procedure Act are, in the court's own words, opaque, and that the tension between the expansive protection in section 296(2) and the harm-focused definition of "counselling communication" in section 296(4) remains unresolved.
  • Under section 296(2), protection potentially extends to counselling communications made before the alleged offence and unrelated to any sexual assault, though the precise scope of that protection where pre-existing mental illness (rather than post-offence harm) is involved remains uncertain.
  • Where credibility is centrally in issue and charges carry serious sentencing consequences, the potential unfairness to an accused from withholding pre-offence mental health records can outweigh the protected interests under section 299D, justifying a grant of leave subject to strict access conditions.
  • Section 108C of the Evidence Act permits expert opinion evidence about the general effect of a mental condition on a witness's capacity to observe or recall events, but does not permit an expert to opine on how a particular complainant in particular circumstances would have observed or remembered facts.
  • Courts in criminal proceedings should be hesitant to resolve legislative ambiguity in a way that could operate to the detriment of an accused, a principle Williams DCJ applied in approaching the uncertain boundaries of the protected confidences regime.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), ss 295, 296, 298, 299D
- Evidence Act 1995 (NSW), s 108C
- Crimes (Forensic Provisions) Act 1990 (NSW), s 32

Cases
- KS v Veitch (No 2) [2012] NSWCCA 266
- NAR v PPC1 [2013] NSWCCA 25
- Peacock v R [2008] NSWCCA 264
- RGM v The Queen [2012] NSWCA 89
- Dupas v R [2012] VSCA 328
- ISJ v R [2012] VSCA 321
- CMG v R (2011) VSCA 416