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Supreme Court 4 March 2015

R v Kelsall (No 3)

[2015] NSWSC 253

Sexual offencesHomicide
CRIMINAL LAW EVIDENCE S 126B EVIDENCE ACT WHERE EVIDENCE IS HIGHLY PROBATIVE PUBLIC INTEREST CONCERNS MITIGATED EVIDENCE ADMISSIBLE

Citation: R v Kelsall (No 3) [2015] NSWSC 253
Court: Supreme Court of New South Wales
Date: 4 March 2015
Judge(s): R A Hulme J

Background

The accused was charged with the indecent assault and murder of the deceased, alleged to have occurred on 8 September 2013 at Neutral Bay. The Crown case was that the accused, then working as a kitchen hand, followed the deceased from a local hotel to his nearby apartment late at night, entered the bedroom, and inflicted multiple stab wounds. The deceased's flatmate discovered him on the floor covered in blood.

The accused pleaded not guilty. The anticipated defence was that the accused had visited the apartment consensually, engaged in sexual activity, left while the deceased was asleep, and that an unknown third party was responsible for the killing.

This judgment dealt with a pre-trial evidentiary dispute: whether statements the accused made to a general practitioner and a psychiatrist in mid-2012 were admissible at trial. Those statements described intrusive thoughts about killing a stranger with a knife while walking home late at night from work.

  • Whether the statements made to the two medical practitioners constituted "protected confidences" under Division 1A of Part 3.10 of the Evidence Act 1995 (NSW)
  • Whether the court should exercise its discretion under s 126B to exclude the evidence, or was required to do so under s 126B(3)
  • How the s 126B(4) factors, including probative value, harm to the accused, and public interest in doctor-patient confidentiality, weighed against each other
  • Whether any order under s 126E (in camera hearing) or a non-publication order under the Court Suppression and Non-publication Orders Act 2010 (NSW) was appropriate

Decision

It was common ground that the statements to both doctors constituted "protected confidences" within the meaning of the Evidence Act. The court therefore turned to whether exclusion was warranted under s 126B, requiring consideration of the factors in s 126B(4).

Hulme J found the probative value of the evidence to be high. The accused had spoken to doctors approximately 15 months before the killing about intrusive thoughts of stabbing a stranger at random while walking home late at night from his job as a chef. The Crown alleged he did precisely that. The court observed it would be "nothing short of remarkable" if someone else had killed the deceased in those circumstances, given the specific and detailed nature of what the accused had previously described.

On the question of harm to doctor-patient confidentiality more broadly, the court accepted evidence from both treating practitioners that their standard practice was to inform patients that confidentiality did not extend to disclosures involving a risk of harm to the patient or to others. The accused had also signed a written privacy consent form from the psychiatrist's practice that expressly stated this limitation. Crucially, the Crown only sought admission of the portions of the statements relating to potential harm to others, which both doctors treated as falling outside the scope of protected confidentiality in any event. The court distinguished the earlier decision in R v Leung, where the relevant disclosure had concerned an extraneous matter unrelated to the authorised disclosure category.

The court also considered, and rejected, the need for in camera proceedings or a non-publication order. Given that the material disclosed was of a type practitioners generally regarded as outside absolute confidentiality, and given the principle of open justice, any protective utility from such orders was outweighed.

Orders Made

  • The evidence of disclosures made to Dr Susan Allman and Dr Matthew Boulton, in the specific passages identified by the Crown Prosecutor, was ruled admissible.
  • The court declined to make a direction under s 126B of the Evidence Act 1995 (NSW) that the evidence not be adduced.

Key Takeaways

  • Under s 126B of the Evidence Act 1995 (NSW), a court weighing whether to exclude protected confidences must consider all factors listed in s 126B(4), including probative value, the effect on the accused, and the public interest in maintaining doctor-patient confidentiality. These factors do not all necessarily point in the same direction.

  • Where both the treating practitioner and the patient had acknowledged, through standard clinical practice and signed consent, that confidentiality does not extend to disclosures involving potential harm to others, the public interest concern in protecting that confidentiality was significantly reduced.

  • The Supreme Court distinguished R v Leung, where disclosure was sought of material extraneous to the authorised disclosure category, from a case where the very content of the disclosure fell within the exception to confidentiality that practitioners routinely apply and communicate to patients.

  • Highly specific statements made to medical practitioners, which closely match the alleged circumstances of a serious offence, can carry substantial probative value when assessed against the other evidence in the Crown case.

  • A court retains discretion to consider in camera orders under s 126E or non-publication orders under the Court Suppression and Non-publication Orders Act 2010 (NSW) to mitigate public interest concerns, but such orders may be declined where the material is not one that attracts absolute confidentiality and where open justice principles apply.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW): ss 55, 126B, 126B(3), 126B(4), 126E; Ch 3 Pt 3.10 Div 1A
- Court Suppression and Non-publication Orders Act 2010 (NSW)

Cases:
- R v Leung [2012] NSWSC 1451