R v Basham [2009] ACTSC 142 (23 October 2009)

Last Updated: 26 October 2009

R v SCOTT ALEXANDER BASHAM

[2009] ACTSC 142 (23 OCTOBER 2009)

APPLICATION – application for leave to disclose protected confidence.

PRACTICE AND PROCEDURE – protection of counselling notes for victims of sexual assault – disclosure of protected confidences – preliminary examination – oral examination of counsellor – inspection of counselling notes – inspection does not support assisted forensic purpose – public interest in preserving confidentiality of counselling notes outweighs the public interest in ensuring fair trial to the applicant – leave for disclosure refused – Evidence (Miscellaneous Provisions) Act 1991 (ACT).

Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 59, s 62, s 63

No. SCC 195 of 2006

Judge: Gray J

Supreme Court of the ACT

Date: 23 October 2009

IN THE SUPREME COURT OF THE )

) No. SCC 195 of 2006

AUSTRALIAN CAPITAL TERRITORY )

R

v

SCOTT ALEXANDER BASHAM

ORDER

Judge: Gray J

Date: 23 October 2009

Place: Canberra

THE COURT RULES THAT:

1. The application for leave for the disclosure of the protected confidence be refused.

1. The accused, Scott Basham, has made an application for leave to disclose a protected confidence pursuant to s 59 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the Act).

2. The relevant provisions of the Act are attached as an appendix.

3. The accused has been charged that on 13 December 1992 he “engaged in sexual intercourse with [the complainant] without her consent and knowing that she did not consent”.

4. The offence allegedly occurred when the complainant was an officer cadet in the Defence Force. After graduation and service in the Defence Force, the complainant undertook psychological counselling.

5. The complainant first went to the police about these allegations on 5 November 2004.

6. Prior to the complainant going to the police, she had been counselled by a clinical psychologist, Ms Ann MacDonald. That counselling commenced on 26 September 2003. On 2 August 2004, the complainant made an application for compensation to the Military Compensation and Rehabilitation Service on the ground of a depressive disorder on the basis that she was “raped whilst on duty”.

7. In the committal proceedings in this matter, the counselling notes were wrongly produced under subpoena. The accused seeks leave to disclose the protected confidence pursuant to s 62 of the Act.

8. For this purpose, the accused sought to establish a legitimate forensic purpose for seeking the leave (see s 60 of the Act).

9. The accused identified the forensic importance to him of the counselling notes as to:

▪ whether prior counselling did take place;

▪ whether light would be shed on the absence of an earlier complaint;

▪ whether the more recent counselling is itself the genesis of the allegations against the accused.

10. It was also pointed out that there was a potential inconsistency as to the location where the sexual assault was said to have occurred.

11. On the basis of these matters, I was satisfied that there was an arguable case that the evidence in relation to which the leave was sought would materially assist the accused in his case in the proceeding (see s 60(2)(b) of the Act).

12. Ms MacDonald was called on a preliminary examination under s 63 of the Act. Her evidence was taken in closed court.

13. Her evidence in this case satisfied some of what was said to be the forensic issues of importance to the accused. Overall, her evidence that the psychological ramifications of the sexual assault, being the issue under discussion, would mean that it was probably not possible to edit the discussions if every reference to the assault and its effect was to be considered.

14. Her answers to the questions put to her do satisfy certain of the forensic issues that are of concern to the accused. They are the issues concerning the fact of prior counselling on the assault having taken place before the complaint to the police and the fact that allegations concerning the assault were made during that counselling.

15. A forensic issue of concern to the accused also extends to the potential for there being inconsistent statements as to the facts and circumstances alleged about the assault. It also includes a possible issue about a prior sexual relationship between the accused and the complainant. The notes that might relate to these matters (see s 63(2)(b) of the Act) could conceivably be edited. The identified forensic issue of whether light could be shed on the absence of earlier complaint could only arise if it was a topic covered in the notes.

16. As a result, it was left to me to examine the counselling notes to see if there was a possibility of there being issues of inconsistency or issues on the topic of an earlier complaint. I have regard to the evidence given by the complainant at committal and the two statements of the complainant provided, one of which addresses the issue of a prior sexual relationship with the accused.

17. After examining the notes in light of these matters, I am of the view that the disclosure of the protected confidence, even on a limited basis, is not necessary for the accused to make a full defence.

18. I take into account the other matters to which s 62(3) of the Act requires that I have regard.

19. In view of the attitude of Ms MacDonald and the complainant to disclose, even limited disclosure may affect the public interest in ensuring that victims of sexual offences receive effective counselling and treatment. It could dissuade victims from seeking such treatment and diminish its value. If the evidence is not sufficiently probative to have an affect on the outcome of the case, its disclosure may have a negative effect on the public interest in maintaining confidentiality.

20. I do not regard the disclosure as being sought on the basis of a discriminatory belief or bias.

21. Although the persons to and by whom the protected confidence was made object to the disclosure of the protected confidence, I note that in this case the complainant accepts that it may be disclosed and the psychologist says that the complainant is not distressed by it. I accept also the reasonable expectation of confidentiality associated with counselling, as well as prejudice to the complainant’s privacy, will be affected by the disclosure. I understand that to a limited extent, that has been lessened by the passage of time.

22. Overall, the fact that what is contained in the counselling notes would not, in my view, be necessary for the accused to make a full defence, taken with the other matters to which s 62(3) of the Act refers, means that I am not satisfied that the public interest, in ensuring that the accused is given a fair trial, is outweighed by the public interest in preserving the confidentiality of the counselling notes.

23. I refuse to give leave for the disclosure of the protected confidence.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Associate:

Date: 23 October 2009

Counsel for the prosecution: Mr J Lawton

Solicitor for the prosecution: Director of Public Prosecutions (ACT)

Counsel for the accused: Mr Lo Schiaeo

Solicitor for the accused: Simon Crowther Solicitor

Date of hearing: 29 July 2009

Date of judgment: 23 October 2009

APPENDIX

59. Application for leave to disclose protected confidence

(1) An application for leave must—

(a) be in writing; and

(b) set out the leave sought; and

(c) set out the applicant’s arguments in support of the application (including the matters mentioned in section 60 (2) (Threshold test––legitimate forensic purpose)).

(2) The application must also––

(a) set out briefly the nature of the protected confidence evidence (if known); and

(b) set out, or be accompanied by a copy of, any relevant documents.

60. Threshold test––legitimate forensic purpose

(1) The court must refuse the leave sought under section 59 if not satisfied that the applicant has established a legitimate forensic purpose for seeking the leave.

(2) To establish a legitimate forensic purpose, the applicant must—

(a) identify a legitimate forensic purpose for seeking the leave; and

(b) satisfy the court that there is an arguable case that the evidence in relation to which the leave is sought would materially assist the applicant in his or her case in the proceeding.

(3) The court must decide whether or not to refuse the application under this section before it conducts a preliminary examination of the protected confidence evidence under section 61.

61. Preliminary examination of protected confidence evidence

(1) If the court is satisfied that the applicant has established a legitimate forensic purpose for seeking the leave, the court must then conduct a preliminary examination of the protected confidence evidence to decide whether leave should be given.

(2) For the preliminary examination, the court may––

(a) require anyone who has custody or control of a document recording a protected confidence to produce the document to the court for inspection; or

(b) require the counsellor concerned or, if the counsellor provides counselling on behalf of an entity, the principal or another representative of the entity––

(i) to give the court written answers to any questions; or

(ii) to attend the court for oral examination.

(3) The court must not order a person to attend for oral examination under subsection (2) (b) (ii) unless the oral examination of the person is necessary for the effective conduct of the preliminary examination.

(4) Only a person mentioned in subsection (2) may be ordered to answer questions or be examined under this section.

(5) The preliminary examination must be conducted––

(a) in the absence of the public and the jury (if any); and

(b) in the absence of the parties to the criminal proceeding and their lawyers, except to the extent otherwise decided by the court.

(6) Evidence taken at the preliminary examination must not be disclosed to the parties or their lawyers, except to the extent otherwise decided by the court or an appellate court under section 62 (6).

(7) A record of the preliminary examination must be made, but must not be made available for public access.

62. Giving of leave to disclose protected confidence

(1) After conducting the preliminary examination of the protected confidence evidence, the court may give leave for the disclosure of the protected confidence only if satisfied that, in the circumstances of the case, the public interest in ensuring an accused person in the criminal proceeding is given a fair trial outweighs the public interest in preserving the confidentiality of the protected confidence.

(2) To remove any doubt, if the court is satisfied under subsection (1) about part of a document only, it may give leave in relation to that part and refuse leave for the rest of the document.

(3) In making a decision under subsection (1), the court must have regard to—

(a) the extent to which disclosure of the protected confidence is necessary for an accused person to make a full defence; and

(b) the public interest in ensuring that victims of sexual offences receive effective counselling or other treatment; and

(c) the extent to which disclosure of protected confidences may dissuade victims of sexual offences from seeking counselling or other treatment or diminish the value of counselling or other treatment; and

(d) whether the evidence will have a substantial probative value to a fact in issue and whether other evidence of similar or greater probative value is available about the matters to which the evidence relates; and

(e) the likelihood that disclosure of the protected confidence will affect the outcome of the case; and

(f) whether disclosure of the protected confidence is sought on the basis of a discriminatory belief or bias; and

(g) whether the person to or by whom the protected confidence was made objects to the disclosure of the protected confidence; and

(h) the nature and extent of the reasonable expectation of confidentiality for the protected confidence and the potential prejudice to the privacy of anyone, including to the extent to which any interest in confidentiality or privacy has been lessened by the passage of time or the happening of any event since the protected confidence was made.

(4) Subsection (3) does not limit the matters to which the court may have regard.

(5) Leave under this section may be given subject to restrictions.

(6) If the court refuses to give leave, and an appeal is made against the refusal, or a ground of an appeal is the refusal, the appellate court may examine the evidence taken at the preliminary examination under section 61 (Preliminary examination of protected confidence evidence), and may make the orders about the disclosure of the evidence it considers appropriate.

63. Ancillary orders for protection of person who made protected confidence

(1) The court may make the orders it considers appropriate to limit possible harm, or the extent of possible harm, to a person who made a protected confidence by the disclosure of protected confidence evidence.

(2) Without limiting subsection (1), the court may––

(a) order that the court be closed to the public while all or part of the protected confidence evidence is presented; or

(b) for a document recording a protected confidence––order that a document be edited as directed by the court or that a copy of a document (or part of a document) be disclosed instead of the original; or

(c) make orders in relation to the suppression or publication of all or any part of the protected confidence evidence; or

(d) for a document recording a protected confidence––make orders about the production or inspection of the document; or

(e) make orders in relation to the disclosure of—

(i) protected identity information about the person who made the protected confidence; or

(ii) information that discloses the identity of the person who made the protected confidence; or

(iii) information from which the identity of the person who made the protected confidence might reasonably be inferred.

(3) This section is in addition to section 40 (Prohibition of publication of complainant’s identity).

(4) In this section:

protected identity information means information about, or allowing someone to find out, the private, business or official address, email address or telephone number of a person.