Citation: R v Firebrace (No 3) [2014] NSWDC 276
Court: District Court of New South Wales
Date: 12 August 2014
Judge: Cogswell SC DCJ
Background
The accused was tried in the District Court at Parramatta on a charge of aggravated sexual assault. The accused did not deny that sexual intercourse occurred but maintained that the complainant had consented. A significant part of the prosecution's case concerned the complainant's behaviour immediately after the encounter, including self-harm and a call to police.
Defence counsel issued subpoenas to Campbelltown Hospital and the Campbelltown Mental Health Unit seeking documents related to the complainant. Because these were sexual assault proceedings, the production of those documents engaged the sexual assault communications privilege regime under the Criminal Procedure Act 1986 (NSW). The accused was ultimately acquitted by the jury.
His Honour delivered these reasons after the verdict to explain the rulings made on 31 July, 1 August and 4 August 2014 concerning which documents should be made available to defence counsel.
Legal Issues
- Whether leave to issue the subpoenas should be granted (retrospectively) under the Criminal Procedure Act 1986 (NSW)
- Whether documents produced under the subpoenas constituted "protected confidences" within the meaning of s 296 of the Act
- What the words "counsels", "treats" and "therapy" mean within the statutory definition in s 296(5)
- Whether any protected confidences nonetheless had substantial probative value justifying access under s 299D
Decision
Retrospective leave. His Honour noted that the subpoenas should not have been issued without prior leave of the court. Treating it as common ground that retrospective leave was appropriate, he granted it.
Meaning of "counsels", "treats" and "therapy". The court examined the statutory definition of "counsels" in s 296(5) carefully. His Honour accepted that the definition is deliberately broad, consistent with the legislature's stated purpose of extending privilege beyond formally trained counsellors to those who provide listening-based support. However, the alternative limb of the definition, covering persons who "advise, give therapy to or treat" another, required contextual interpretation. His Honour concluded that the word "treats" does not extend to purely clinical or physical interventions such as a triage nurse applying a bandage. It means treatment of the kind a counsellor in the customary sense (for example, a psychologist or psychiatrist) would provide, such as prescribing medication or making referrals. The word "therapy" was read consistently with that contextual meaning.
Specific documents. Several documents completed by medical practitioners and police officers under the Mental Health Act 2007 (NSW) were found not to be protected confidences. Their authors were recording or requesting formal mental health assessments, not counselling the complainant in any relevant sense. Other documents, including those generated by hospital nursing staff, raised more borderline questions; in some instances his Honour was uncertain but nonetheless granted access. A further bundle of hospital documents was found likely to constitute protected confidences, but his Honour granted access to those on the basis that their probative value was substantial.
The balancing exercise. For the documents likely constituting protected confidences, the court weighed the public interest in preserving confidentiality and protecting the complainant from harm against the public interest in allowing the accused to defend a serious charge carrying a maximum of 20 years' imprisonment. The documents disclosed that the complainant's post-incident behaviour was not an isolated occurrence and revealed a pattern associated with alcohol and cannabis use on previous occasions. His Honour concluded that the accused's interest in resisting the allegation substantially outweighed the competing public interests, and granted access accordingly.
Orders Made
No orders were made in this decision.
Key Takeaways
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The District Court held that the word "treats" in the s 296(5) definition of "counsels" must be read in context: it covers treatment of the kind provided by a counsellor (such as prescribing medication or making referrals) and does not extend to purely physical or administrative clinical interventions.
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Documents completed by medical practitioners or police under the Mental Health Act 2007 for the purpose of assessing or apprehending a potentially mentally ill person are unlikely to constitute "protected confidences", because their authors are not counselling the subject in any relevant sense.
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Under s 299D, even documents that likely constitute protected confidences may be released to an accused where the court finds their probative value to be substantial and the public interest in a fair defence to a serious charge substantially outweighs the interests protected by the privilege.
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A structural feature of these applications is that defence counsel does not have access to the documents at the time submissions are made, so the court must assess the balancing exercise on the basis of broad submissions from the defence and more document-specific submissions from the complainant's representative.
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Retrospective leave to issue subpoenas that were issued without prior court approval under the Act can, in appropriate circumstances, be granted by the court.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), ss 296, 299D
- Mental Health Act 2007 (NSW)
Cases
- KS v Veitch (No 2) [2012] NSWCCA 266; 84 NSWLR 172; 229 A Crim R 46
- NAR v PPC1 [2013] NSWCCA 25; 224 A Crim R 535
- R v Markarian [2012] NSWDC 197 (Berman SC DCJ)
- R v Russell [2013] NSWDC 129 (Marien SC DCJ)