Citation: R v Rogerson; R v McNamara (No 37) [2016] NSWSC 304
Court: Supreme Court of New South Wales
Date: 21 March 2016
Judge(s): Bellew J
Background
This decision arose in the course of the high-profile murder trial of Roger Rogerson and Glen McNamara. A subpoena was issued to a medical practitioner, Dr Hampshire, for the production of medical records relating to Paul Kenny, a solicitor who had acted for Rogerson and who was expected to be called as a Crown witness.
Kenny's role became relevant because evidence had emerged during the trial that he had conversations with McNamara's daughter, Jessica McNamara, which included words found by the court (in earlier pre-trial proceedings) to amount to a threat. Kenny was expected to be cross-examined about those conversations when he gave evidence.
When Dr Hampshire produced Kenny's medical records in response to the subpoena, Bellew J took the view that Kenny should be given the opportunity to inspect them first. Kenny's representatives subsequently applied under s 126B of the Evidence Act 1995 (NSW) to exclude those parts of the documents disclosing protected confidences, being communications made in confidence to the medical practitioner in the course of that professional relationship.
Legal Issues
- Whether parts of Kenny's medical records produced on subpoena constituted "protected confidences" within the meaning of s 126A of the Evidence Act 1995 (NSW).
- Whether, under s 126B, the likely harm to Kenny from adducing that evidence outweighed the desirability of that evidence being given.
- Whether an application under s 126B can properly seek exclusion of an entire document where only parts of it disclose a protected confidence.
- Whether the court's direction under s 126B could extend to any question asked of Kenny about his general health.
Decision
Bellew J criticised the manner in which the application was conducted. Kenny's representatives sought exclusion of entire documents without identifying which specific parts contained protected confidences. The court noted that s 126B operates on evidence of protected confidences within documents, not on entire documents as a matter of course. Doing otherwise imposes an unnecessary burden on the court and ignores the plain operation of the section.
The court accepted that relevant communications between Kenny and Dr Hampshire satisfied the definition of "protected confidence" in s 126A: they were made in confidence in the course of a professional relationship, with an implied obligation not to disclose their contents.
Applying the mandatory test in s 126B(3), Bellew J was satisfied that harm of the kind described by Dr Hampshire would, or might, be caused to Kenny if the evidence were adduced, and that the nature and extent of that harm (particularly psychological harm) outweighed the desirability of adducing the evidence. The court noted that the probative value and importance of the protected portions were limited.
The court rejected the submission that its direction should extend to any question about Kenny's general health. The section applies only to evidence constituting a protected confidence as defined. A question whose answer would not disclose a protected confidence falls outside s 126B regardless of whether it touches on health generally.
Orders Made
- The redacted portions of the material produced by Dr Hampshire were excluded pursuant to s 126B of the Evidence Act 1995 (NSW).
Key Takeaways
- Under s 126B of the Evidence Act 1995 (NSW), a court may only direct exclusion of the parts of a document that disclose a protected confidence, not the document in its entirety simply because some protected content appears within it.
- An applicant seeking exclusion of protected confidences contained in documents bears responsibility for identifying precisely which parts of those documents they say disclose a protected confidence; leaving that task entirely to the court is an unsatisfactory approach that the Supreme Court expressly criticised.
- Where the s 126B(3) mandatory test is satisfied, being that harm would or might be caused to the protected confider and that harm outweighs the desirability of adducing the evidence, the court must give a direction excluding that evidence.
- A direction under s 126B does not automatically extend to all questions on the general subject matter of the protected confidence; it is limited to evidence that would itself disclose a protected confidence as defined in s 126A.
- Bellew J confirmed the approach established in R v Young (1999) 46 NSWLR 681: the targeted operation of s 126B means document-level blanket exclusion is inappropriate where only portions of a document contain protected material.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 18, 126A, 126B, 126E, 128
Cases
- R v Rogerson; R v McNamara (No 1) [2015] NSWSC 592
- R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681
- Wilson v The State of New South Wales [2003] NSWSC 805