Director of Public Prosecutions v Haywood [2022] NSWLC 13

Local Court New South Wales

Medium Neutral Citation: Director of Public Prosecutions v Haywood [2022] NSWLC 13 Hearing dates: 23 August 2022 Date of orders: 24 August 2022 Decision date: 24 August 2022 Jurisdiction: Criminal Before: Olischlager LCM Decision: The Court grants general access to the material produced under subpoena. Catchwords: Criminal Procedure, Setting aside subpoena for production, protected disclosures Legislation Cited: Crimes Act 1900 (NSW), s 66EB(2) Evidence Act 1995 (NSW) Cases Cited: Blanch v Deputy Commissioner of Taxation [2004] NSWCA 461 Botany Bay Instrumentation and Control Pty Ltd v Stewart [1984] 3 NSWLR 98; (Supreme Court (NSW), Powell J, 17 October 1984) 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; (Court of Appeal (NSW), 1 June 1978) 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 Category: Procedural rulings Parties: Director of Public Prosecutions (Crown) James Haywood (Defendant) Representation: Solicitors: Mr Edye for DPP Ms Byrnes for the defendant File Number(s): 2022/42708 Publication restriction: Nil

Judgment 1. Mr Haywood appears before the Local Court at Walgett in relation to a charge of procure a child for unlawful sexual activity pursuant to section 66EB(2) of the Crimes Act 1900 (NSW). The proceedings are listed for hearing on 16 November 2022. 2. The officer in charge has issued a subpoena addressed to the Western NSW Local Health District requiring the production of "medical records of James Haywood dated 12 February 2022 from the Lightning Ridge Multi-Purpose Health Service". The subpoena was returnable before the Local Court on 9 August 2022. Fifteen pages of medical documents have been produced under the subpoena. 3. The Director of Public Prosecutions seeks orders to inspect the material produced. The defendant seeks that the subpoena be set aside and objects to access being granted on the grounds that the subpoena was not issued for any legitimate forensic purpose and that the subpoenaed material may contain a protected confidence which would be inadmissible having regard to the provisions of Division 1A of Part 3.10 of the Evidence Act 1995 (NSW). 4. Both parties have made submissions predicated on the position that the subpoenaed material contains protected confidence. The subpoenaed material includes medical records relevant to Mr Haywood's attendance at the Lightning Ridge Multi-Purpose Health Service on 12 February 2022, a time immediately after the time of the alleged offence particularised in the Court Attendance Notice. The Director of Public Prosecutions submits that the documents produced may contain matters relating to admissions or matters relevant to Mr Haywood mental health. Submissions made on behalf of the Director were made that in the absence of any evidence of a particular harm then the Court would not make a direction excluding the evidence. 5. The submissions on behalf of the defendant are that the defendant will suffer harm through the breach of privacy that Mr Haywood will face through the release of matters pertaining to his mental health and that the release of material will undermine Mr Haywood's ongoing need to speak confidentially to health professionals and impact his mental health. The defendant submits that this harm outweighs any possible desirability of adducing evidence of any protected confidence.