Citation: R v Bowden [2020] NSWDC 363
Court: District Court of New South Wales
Date: 10 June 2020
Judge(s): Bennett SC DCJ
Background
The accused faced two charges relating to alleged sexual offending against two sisters at a coastal shack community on the Kurnell peninsula in the early 2000s. The first charge alleged sexual intercourse with a child under ten years, contrary to s 66A of the Crimes Act 1900. The second alleged an act of indecency towards the younger sister, also a child under ten, contrary to s 61O(2) of the same Act. The accused was approximately 19 years old at the time of the alleged offences and worked informally as a ranger at the location.
Neither complainant disclosed the alleged conduct close to the time it occurred. The first recorded disclosure came when the older complainant spoke with a psychologist, Ms Newbury, in or around 2015. Her younger sister then made her own disclosure shortly after. Formal police statements followed in 2019.
The defence brought a notice of motion seeking access to documents produced under subpoena from the Commissioner of Police, a psychologist, and a psychiatrist. Those documents related to the older complainant's mental health treatment and disclosures. The application was made under s 298(2) of the Criminal Procedure Act 1986.
Legal Issues
- Whether the documents produced under subpoena attracted sexual assault communications privilege under Part 5, Division 2 of the Criminal Procedure Act 1986
- Whether the accused had established sufficient grounds for the court to grant leave to access those privileged documents
- Whether the public interest in admitting the material substantially outweighed the interest in preserving the complainant's confidentiality
Decision
The court accepted, as both parties conceded, that the documents attracted sexual assault communications privilege. That privilege protects confidential communications made in the course of therapeutic or counselling relationships involving sexual assault complainants. Access to such documents requires the court's leave, and even access does not automatically permit use of the material at trial.
Bennett SC DCJ reviewed the substance of the older complainant's police statements in detail. Those statements contained extensive disclosures about the complainant's mental health, childhood experiences, and the impact she attributed to the alleged offending. The court also noted that the complainant's mother had made observations about the complainant's patterns of behaviour that featured in the brief.
After examining the documents, the court was not satisfied that the public interest in admitting the counselling and psychiatric records substantially outweighed the interest in protecting the confidentiality of those therapeutic communications. This conclusion was qualified, however, because of the extent to which the complainant had already disclosed similar matters in her police statement and through her mother's observations. The court left open the possibility of revisiting access once the Crown clarified the use it intended to make of evidence about the complainant's sequelae (that is, the ongoing effects she attributed to the alleged abuse) and her mother's observations.
The court granted access to Medicare records produced by Services Australia, confining that access to counsel and instructing solicitors. Access to the psychologist's records, the psychiatric records, and police documents that substantially replicated the psychologist's material was refused.
Orders Made
- Access granted to documents produced by Commonwealth agency Services Australia (Medicare), confined to counsel and solicitors instructing counsel in the proceedings.
- Access refused to the remaining documents, subject to an agreement reached on behalf of the protected confider regarding police-produced material, with the exception of police documents replicating material provided by the psychologist.
- The Crown directed to notify the parties within five days of the use it intends to make of sequelae evidence described by the complainant and observations attributed to the complainant's mother.
- Liberty to re-agitate the access question reserved to all parties once the Crown gives that notice.
- All material returned to the court file.
- Liberty to apply granted.
Key Takeaways
- Sexual assault communications privilege under Part 5, Division 2 of the Criminal Procedure Act 1986 applies to confidential therapeutic communications involving complainants, and the defence must obtain the court's leave before accessing such documents, even after production under subpoena.
- Access to privileged records does not automatically permit their use at trial; a further application for leave to use the material would be required.
- The District Court applied a balancing test, asking whether the public interest in admitting the records substantially outweighed the interest in protecting confidentiality. On the facts here, that threshold was not met, though the court's conclusion was qualified given the complainant's own disclosures in her police statement.
- Where a complainant has already disclosed similar material in evidence served on the defence, that prior disclosure is a relevant factor in the privilege analysis, though it does not automatically override the privilege.
- The question of access to privileged counselling records may remain open during proceedings, particularly where the Crown has yet to indicate how it proposes to use evidence of a complainant's psychological sequelae.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 66A, 61O(2)
- Criminal Procedure Act 1986 (NSW), s 298(2); Part 5, Division 2 (Sexual assault communications privilege)
Cases cited: No cases were cited in the judgment.