Citation: R v Cable [2014] NSWDC 342
Court: District Court of New South Wales
Date: 9 September 2014
Judge(s): Judge S Norrish QC
Background
An accused faced trial on 18 counts of sexual assault allegedly committed against five complainants between 47 and 53 years ago, when he was a member of a religious teaching order working at schools in the Hunter Valley and south-eastern Sydney. One complainant, referred to throughout as PH9, was the subject of eight counts on the proposed indictment.
Two subpoenas were issued by leave of the District Court, requiring a medical practice and a psychologist to produce clinical notes, referrals, reports, and counselling records relating to PH9's mental health over a defined period. Both parties produced documents in response.
The accused then applied for access to those documents. PH9 opposed the application, and the court was required to determine what, if any, material could be released under the protected confidence regime in Part 5, Division 2 of the Criminal Procedure Act 1986.
Legal Issues
- Whether the subpoenaed documents constituted protected confidences under the Criminal Procedure Act 1986.
- Whether the threshold requirements in section 299D(1)(a), (b), and (c) of the Act were satisfied so as to permit access to any of the documents.
- How to weigh the public interest in admitting evidence of substantial probative value against the public interest in preserving confidentiality and protecting the complainant from harm.
- Whether the complainant's prior voluntary disclosures in his police statement and committal evidence were relevant to the harm analysis.
Decision
Issue 1: Protected confidence status
The court found that the material produced by both the medical practice and the psychologist was, to all intents and purposes, a protected confidence under the Act (at [7]). No party disputed that characterisation.
Issue 2: Clinical notes from the medical practice (Exhibit 4)
The court concluded that much of the medical practice material had either no relevance or no probative value. Any material that did touch on PH9's mental health either lacked substantial probative value or could not be released by reason of sections 299D(1)(b) and (c), having regard to the policy considerations embedded in those provisions (at [21]).
Issue 3: Psychologist's counselling notes (Exhibit 3)
The bulk of the psychologist's records comprised extensive handwritten and typed counselling notes. The court held these could not be provided to the accused, primarily because of the operation of sections 299D(1)(b) and (c). The court placed particular weight on the need to encourage victims to seek counselling, the importance of maintaining confidentiality in the therapeutic relationship, the public interest in ensuring sexual assault victims receive effective counselling, and the likelihood that disclosure would damage the counsellor-client relationship (at [22]).
Issue 4: Partial release of psychologist's typed notes dated 8 October 2013
One portion of the psychologist's material was treated differently. The court identified typewritten notes dated 8 October 2013, recorded approximately seven days after PH9 made his police statement, as having substantial probative value within the meaning of section 299D(1)(a). The relevant passages recorded a history concerning the identification and circumstances of the alleged sexual abuse (at [23]). The court reasoned that this material supplemented, rather than exceeded, what PH9 had already voluntarily disclosed in his police statement and committal evidence, and that providing it to the accused would not cause additional harm beyond that already flowing from those prior disclosures (at [24]-[25]). Accordingly, this extract was ordered to be made available to the accused, while the remainder of the subpoenaed material was to be sealed (at [28]-[29]).
Orders Made
- A limited extract of the psychologist's typewritten notes dated 8 October 2013 was made available to the accused.
- A copy of that extract was provided to counsel for the protected confider.
- A further copy was placed in a sealed envelope, constituted as Exhibit 8 on the voir dire, to be opened only at the direction of the District Court or the Supreme Court.
- Exhibits 3 and 4 (the full documents produced under each subpoena, with copies of the subpoenas attached) were each placed in sealed envelopes, to be opened only at the direction of or further order of the District Court or the Supreme Court of New South Wales.
Key Takeaways
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Under Part 5, Division 2 of the Criminal Procedure Act 1986, a court may permit access to protected confidences only where the material has substantial probative value, the public interest in admitting it is not outweighed by the public interest in preserving confidentiality and protecting the confider, and the other statutory requirements are met (at [3], [21]-[23]).
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The District Court treated the near-contemporaneous timing of counselling notes, recorded just days after a complainant made a formal police statement, as a relevant factor supporting a finding of substantial probative value in relation to those specific notes (at [28]).
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Where a complainant has already voluntarily disclosed certain information in a police statement and in committal evidence, the court assessed any additional harm from releasing related counselling records by reference to what had already entered the public domain, rather than treating all disclosure as equally harmful (at [24]-[25]).
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Extensive handwritten counselling notes of a therapeutic nature attracted strong protection under sections 299D(1)(b) and (c), with the court emphasising the legislative policy of encouraging sexual assault victims to seek counselling and preserving the integrity of the therapeutic relationship (at [22]).
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A court undertaking this exercise may release only a discrete, identified extract of subpoenaed material and direct that all remaining documents be sealed, rather than making an all-or-nothing determination on access (at [29]).
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986
Cases
- KS v Veitch [2012] NSWCCA 266