Citation: R v Magenta (a pseudonym) [2022] NSWDC 674
Court: District Court of New South Wales
Date: 16 December 2022
Judge: Grant DCJ
Background
The accused faced a four-count indictment alleging sexual intercourse without consent against a complainant, with the offending said to have occurred in 2005. The counts arose from two separate alleged incidents: one at Thredbo and one during a car trip from Mount Buller in Victoria to Sydney. The accused admitted that sexual activity occurred but maintained it was consensual and that he believed the complainant was over 16.
The complainant had participated in Eye Movement Desensitization and Reprocessing (EMDR) therapy across two separate periods: four sessions with Ms Jacqueline Nugara in 2015, and two sessions with Dr Sharon Gold in 2020. EMDR is a therapeutic technique, originally developed by Francine Shapiro in 1987, that uses guided eye movements and cognitive components to process distressing memories. The complainant made her first statement to police in 2019, after the 2015 EMDR sessions, and a further statement in 2022, after the 2020 sessions.
The defence applied for leave to issue subpoenas to both therapists to obtain their clinical records. Those records were produced to the court under consent orders made pursuant to s 299B(4) of the Criminal Procedure Act 1986. The question before Grant DCJ was whether leave should be granted under s 298(1) to compel production of the documents and to permit their use in the proceedings.
Legal Issues
- Whether the subpoenaed EMDR therapy records satisfied the threshold test of having a legitimate forensic purpose and being potentially relevant to the defence case
- Whether the public interest in preserving the confidentiality of the complainant's protected confidences was substantially outweighed by the public interest in admitting material of substantial probative value, as required by s 299B(1) of the Criminal Procedure Act 1986
- Whether the complainant's disclosure to the accused of the fact that she was receiving therapy could be treated as a waiver of confidentiality over the therapy records
Decision
Grant DCJ first considered whether the material met the threshold for leave under the principles in R v Saleam and AG for NSW v Chidgey: the defence had to show that the subpoenaed material may be relevant and may have a legitimate forensic purpose, and that it was "on the cards" that the material might materially assist in the determination of the case. His Honour reviewed the records, which included densely handwritten notes, and was satisfied that the highlighted passages identified by the complainant's representative, Mr O'Brien, met this threshold. The records included passages concerning the complainant's memory and her account of what occurred, matters that went directly to her accuracy and reliability as the sole witness on the consent issue.
The court then turned to the s 299B(1) balancing exercise. His Honour accepted the defence argument that the EMDR question was significant both as a potential basis for an application to exclude evidence under s 137 of the Evidence Act 1995 and for cross-examination on credibility. He noted that the complainant's account to her mother in 2012/2013 differed from her later statements to police, and raised the question of whether EMDR treatment had played a role in shaping the evolution of her accounts. The defence indicated it intended to call an expert, Dr Roberts, on the EMDR issue.
Despite accepting that the material had some probative value in those respects, Grant DCJ ultimately concluded that the public interest in preserving confidentiality was not substantially outweighed by the public interest in admitting the material. The court rejected a global waiver argument advanced by the defence based on the complainant having disclosed to the accused that she was in counselling. His Honour held that the records had to be assessed line by line, not as a whole. He ordered that only the specific highlighted passages identified by Mr O'Brien be released, with all other content redacted.
The released material was restricted to lawyers only and was to be destroyed at the conclusion of the trial.
Orders Made
- Consent orders had earlier been made under s 299B(4) for Ms Nugara and Dr Gold to produce their records to the court
- Leave granted to release only the highlighted passages identified in paragraphs 22 and 24 of Mr O'Brien's outline of submissions, with all other passages redacted
- Released materials restricted to lawyers only
- Produced materials to be destroyed at the conclusion of the accused's trial
Key Takeaways
- Under s 298(1) of the Criminal Procedure Act 1986, a defendant must obtain the court's leave before compelling production of documents recording a protected confidence, and before adducing any such evidence in criminal proceedings.
- The threshold test for leave requires the defence to show that the material may be relevant and may have a legitimate forensic purpose, meaning it is "on the cards" that it could materially assist in determining the case (R v Saleam; AG for NSW v Chidgey).
- The District Court applied a line-by-line review of the therapy notes rather than assessing the records globally, reflecting the requirement to weigh the confidentiality interest and potential harm to the complainant against the probative value of each specific passage.
- A complainant's disclosure to an accused of the bare fact that she was receiving therapy does not, without more, constitute a waiver of the sexual assault communications privilege over the contents of those therapy records.
- Where EMDR therapy predates or falls between a complainant's statements to police, and the complainant's account evolved over time, the therapy records may have sufficient forensic relevance to cross the initial threshold, even if the balancing exercise ultimately limits what is released.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), including ss 295, 298, 299A, 299B, 299D
- Evidence Act 1995 (NSW), s 137
Cases
- AG for NSW v Chidgey [2008] NSWCCA 65
- KS v Veitch (No 2) [2012] NSWCCA 266
- PPC v Williams [2013] NSWCCA 286
- R v Jenkyns (1993) 32 NSWLR 712
- R v KG [2001] NSWCCA 510
- R v McFelin (1985) 2 NZLR 139
- R v Saleam [1999] NSWCCA 86
- R v Tillett (1995) 38 NSWLR 1