Citation: R v Sigadula [2024] NSWDC 664
Court: District Court of New South Wales
Date: 13 August 2024
Judge(s): Mahony SC DCJ
Background
The accused faced trial on two counts arising from an alleged sexual assault of the complainant, who was his estranged wife. Before jury empanelment, the accused brought a Notice of Motion seeking access to hospital records produced by Wyong Hospital pursuant to subpoenas he had issued without first obtaining the court's leave, in breach of section 298 of the Criminal Procedure Act 1986 (CPA).
The records related to two admissions of the complainant to Wyong Hospital in February and June 2020, predating the alleged offending in March 2021. The complainant's representative, referred to as the Principal Protected Confider (PPC), opposed access on the basis that the records constituted protected confidences under the CPA's sexual assault communications privilege regime.
A central context for the application was the Crown's allegation that the accused had engaged in controlling behaviour, including contacting the Ambulance Service and police to assert the complainant was mentally ill, conduct characterised in submissions as "gaslighting." The accused sought the hospital records to challenge that characterisation and to address the complainant's credit.
Legal Issues
- Whether the court should overlook the procedural irregularity of the subpoenas having been issued without leave under section 298 of the CPA and proceed to assess the documents on their merits.
- Whether the documents produced by Wyong Hospital constitute protected confidences (counselling communications) under sections 295 and 296 of the CPA.
- Whether the documents have substantial probative value sufficient to meet the threshold in section 299D(1) of the CPA.
- Whether other documents or evidence concerning the same matters are available, as required by section 299D(1)(b).
- Whether the public interest in admitting the documents is substantially outweighed by the public interest in preserving the complainant's confidentiality and protecting her from harm under section 299D(1)(c).
Decision
Issue 1: Procedural irregularity
The court accepted, consistent with KS v Veitch (No 2) [2012] NSWCCA 266, that the correct approach to the breach of section 298 was to disregard the irregularity and proceed to assess whether the accused should have access to the documents (at [6]-[10]). The court accordingly inspected the documents produced by Wyong Hospital.
Issue 2: Protected confidences
After inspecting the records, the court found that all documents from both the February 2020 admission and the June 2020 admission and discharge record protected confidences under sections 295 and 296 of the CPA (at [31]-[32]). The court noted that communications made before the alleged offences can still attract the privilege, and that the broad range of treating professionals at Wyong Hospital, including nurses, doctors, social workers, psychologists and psychiatrists, fell within the relevant statutory definitions (at [14], [21]-[22]).
Issue 3: Substantial probative value
The court held that the Wyong Hospital records do not have substantial probative value (at [36]). The records concerned admissions in February and June 2020 and were not close in time to the key event of 6 March 2021, when the accused called the Ambulance Service. The Ambulance Service's own medical record from that date recorded the incident as "more of a relationship and social problem, not a medical/mental health problem," which the court considered more directly relevant to the accused's conduct than the hospital records (at [36]).
Issue 4: Availability of other evidence and credit
The court found that the credit issue regarding the complainant's mental health could be ventilated at trial without the subpoenaed records. The complainant had already acknowledged mental health problems, a suicide attempt in June 2020, and episodes of anxiety and depression during the relationship, all of which appeared in her own statements (at [35]). The court also found that adducing the records would likely infringe the complainant's reasonable expectation of privacy and cause her harm, a matter taken into account under section 299D(2) (at [37]).
Orders Made
- Leave pursuant to section 298 of the CPA to compel Wyong Hospital to produce the documents refused.
- Leave for the accused's legal representatives to inspect the documents refused.
- The accused's Notice of Motion filed 12 August 2024 dismissed as it relates to the Wyong Hospital documents.
- Documents ordered to be returned to Wyong Hospital.
- Confidential annexures (MFIs 1, 2 and 3) directed to be returned to the solicitor for the PPC together with copies.
Key Takeaways
- Under the sexual assault communications privilege regime in the CPA, a court that receives documents produced in response to a subpoena issued without leave may disregard the procedural irregularity and proceed to assess whether access to the documents is justified on the merits, following KS v Veitch (No 2) (at [6]-[10]).
- Hospital records from a broad range of treating professionals, including nurses, registrars, social workers, psychologists and psychiatrists, may constitute protected confidences as "counselling communications" under sections 295 and 296 of the CPA, and the privilege can apply even where the communications predate the alleged sexual assault offence (at [21]-[22], [31]-[32]).
- Temporal distance between hospital records and the events at issue in a trial is a relevant factor in assessing substantial probative value: records from some nine months before the key incident were found insufficiently connected to meet the section 299D(1) threshold (at [36]).
- Where a complainant has already acknowledged relevant mental health issues in her own police statements, those admissions may allow the defence to raise credit issues at trial without requiring access to protected medical records (at [35]).
- In applying section 299D(2), the District Court took into account both the likely infringement of the complainant's reasonable expectation of privacy and the probability of harm to her as factors weighing against granting access (at [37]).
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 , ss 295 – 299D
Cases
- KS v Veitch (No 2) [2012] NSWCCA 266
- NAR v PPC1 [2013] NSWCCA 25
- PPC v Stylianou [2018] NSWCCA 300