Citation: Director of Public Prosecutions v Haywood [2022] NSWLC 13
Court: Local Court of New South Wales
Date: 24 August 2022
Judge(s): Olischlager LCM
Background
The defendant faced a charge of procuring a child for unlawful sexual activity under section 66EB(2) of the Crimes Act 1900 (NSW), with the matter listed for hearing in November 2022 at the Local Court at Walgett. The officer in charge issued a subpoena to the Western NSW Local Health District requiring production of medical records from the defendant's attendance at the Lightning Ridge Multi-Purpose Health Service on 12 February 2022, being immediately after the time of the alleged offence. Fifteen pages of medical documents were produced.
The prosecution sought access to the produced material. The defendant sought to have the subpoena set aside and objected to access being granted on two grounds: that the subpoena lacked a legitimate forensic purpose, and that the material likely contained a protected confidence that would be inadmissible under Division 1A of Part 3.10 of the Evidence Act 1995 (NSW).
Both parties proceeded on the basis that the produced material did contain protected confidences. The produced records included mental health assessment information and communications between the defendant and health professionals, made in a context carrying at least an implied obligation of confidentiality.
Legal Issues
- Whether the subpoena should be set aside for lacking a legitimate forensic purpose.
- Whether the protected confidence provisions in section 126B of the Evidence Act 1995 applied directly to the question of setting aside the subpoena or granting access to subpoenaed material.
- Whether section 131A of the Evidence Act 1995 extended the protected confidence regime to pretrial processes in the circumstances of this case.
- Whether general access to the subpoenaed material should be granted.
Decision
The court first confirmed that the documents qualified as protected confidences. Citing R v Rogerson; R v McNamara (No 37) [2016] NSWSC 304, the Magistrate held that mental health records made in the context of a medical consultation, where an implied obligation of confidentiality exists, fall squarely within the definition of a "protected confidence" in section 126A of the Evidence Act 1995.
The court then addressed whether section 126B, which directs a court to weigh the harm of disclosure against the desirability of adducing evidence, applied to this pretrial access question. Drawing on Jolley v DPP [2020] NSWSC 1406, the Magistrate held that section 126B is directed at admissibility at trial, not at decisions about whether to set aside a subpoena or grant access. The test in section 126B was relevant, but not determinative.
The court also held that section 131A, which extends confidentiality protections to pretrial disclosure processes, did not assist the defendant. That provision only applies where the person required to produce the material objects to doing so. The Western NSW Local Health District raised no objection, so the defendant could not rely on that provision.
Applying the principles governing setting aside subpoenas and granting access to subpoenaed material, the Magistrate found no basis to set aside the subpoena. The court could not, at the pre-access stage, assess whether a direction excluding the evidence under section 126B was likely to be made, as that assessment required proper review of the material. The court also noted that even inadmissible documents may be subject to inspection, and that any access granted carries an implied undertaking not to use the material for purposes outside the litigation.
Orders Made
- General access granted to the material produced under subpoena.
Key Takeaways
- Section 126B of the Evidence Act 1995 governs the admissibility of protected confidences at trial; it does not directly determine whether a subpoena should be set aside or whether access to subpoenaed material should be refused at the pretrial stage.
- The protected confidence provisions in section 131A extend to pretrial disclosure processes only where the person required to produce the material has itself raised an objection. A defendant cannot invoke section 131A where the producing party does not object.
- Mental health records made during a medical consultation carry at least an implied obligation of confidentiality and qualify as protected confidences under section 126A of the Evidence Act 1995.
- In deciding whether to grant access to subpoenaed material, the principles from National Employers' Mutual General Insurance Association Limited v Waind & Hill [1978] 1 NSWLR 372 apply, and even documents that may ultimately be held inadmissible can be the subject of inspection.
- Access to subpoenaed documents is subject to an implied undertaking not to disclose or use the material for any purpose outside the relevant litigation, which the court identified as a significant safeguard against the privacy concerns raised.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 66EB(2)
- Evidence Act 1995 (NSW), ss 126A, 126B, 131A, Division 1A of Part 3.10
Cases
- Blanch v Deputy Commissioner of Taxation [2004] NSWCA 461
- Botany Bay Instrumentation and Control Pty Ltd v Stewart [1984] 3 NSWLR 98
- Jolley v DPP [2020] NSWSC 1406
- Moage Limited v Jagelman [2002] NSWSC 953
- National Employers' Mutual General Insurance Association Limited v Waind & Hill [1978] 1 NSWLR 372
- R v Rogerson; R v McNamara (No 37) [2016] NSWSC 304
- Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145
- Urquhart v Lanham [2003] NSWSC 109