REGINA v OLIG [2000] NSWSC 1096

New South Wales Supreme Court

CITATION : REGINA v OLIG [2000] NSWSC 1096 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 70016/00 HEARING DATE(S) : 09/11/00, 10/11/00, 13/11/00, 14/11/00, 15/11/00, 16/11/00, 17/11/00, 20/11/00, 21/11/00, 23/11/00, 27/11/00, 28/11/00 JUDGMENT DATE : 16 November 2000

Regina

PARTIES : v

Shane Eugen Olig JUDGMENT OF : Adams J at 1

COUNSEL : Mr Greg Smith with Mr A McCarthy (Crown) Mr Christopher Craigie with Mr Simon Benson (Accused) SOLICITORS : S E O'Connor (Crown) T A Murphy (Accused) CATCHWORDS : Evidence - information disclosed in counselling session between persons in "de facto" relationship - one party consents to disclosure - other party is dead - whether Family Law Act 1975 applies - whether counsellor bound by oath of secrecy - application of s 126B Evidence Act 1995 LEGISLATION CITED : Family Law Act 1975 Evidence Act 1995 DECISION : See paragraphs 5 and 6

Revised THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION ADAMS J

THURSDAY 16 NOVEMBER 2000 70016/00 REGINA v SHANE EUGEN OLIG JUDGMENT (See page 395 of transcript)

1 The prosecution has proposed to call Janet Jean Sweatman, who is a counsellor, to give evidence of matters stated to her or in her presence during a counselling session with the accused alone and a further session when he was present with the deceased Annette Openshaw. The material disclosed has been tendered on the voir dire. It is clear that it is material to the issues in this trial. 2 Miss Sweatman has raised an issue of secrecy arising from her position as a family and child counsellor as defined by the Family Law Act 1975 (the Act) who took an oath or affirmation of secrecy concerning her responsibilities as such a counsellor. Section 19N of the Act provides so far as is relevant - "(1) This section applies to: (a) a family and child counsellor; or (b) a court mediator; or (c) subject to the regulations, a community mediator or a private mediator; or (d) a person nominated, or acting on behalf of an organisation nominated, for the purposes of paragraph 14C(3)(b) or subparagraph 44(1B)(a)(ii); or (e) a person to whom a party to a marriage has been referred, for medical or other professional consultation, by a person referred to in paragraph (a), (b), (c) or (d). (2) Evidence of anything said, or any admission made, at a meeting or conference conducted by a person to whom this section applies while the person is acting as such a person is not admissible: (a) in any court (whether exercising federal jurisdiction or not); or (b) in any proceedings before a person authorised by a law of the Commonwealth or of a State or Territory, or by the consent of the parties, to hear evidence." 3 In this case the accused was not a married person. The deceased had been a married person but was no longer. She and the accused had lived together in a relationship which was not a marriage for the purposes of the Act. The question is whether a family and child counsellor who speaks to any person in a counselling context is obliged by the terms of the Act and/or his or her oath to keep secret that which is disclosed in the course of such counselling. 4 In my opinion, this turns upon whether such a counsellor "is acting as" a "family and child counsellor": see s 19N(2). "Family and child counselling" is defined (relevantly) as "marriage counselling" in s 4(1) of the Act. In this context the relationship between the accused and the deceased was not a marriage in the sense in which that term is used in the Act. Accordingly, Ms Sweatman was not acting as a "family and child counsellor" in her meetings with the accused either alone or with Ms Openshaw. 5 It follows that the Act has no application. Accordingly, there is no impediment under either the terms of that Act or any oath or affirmation of secrecy which she made. This is a murder trial. The accused consents to the disclosure of the material to be adduced by the prosecution. The other party to the counselling session is dead. There is therefore no issue of public interest immunity which arises for separate consideration. The result is that the witness is obliged to answer questions which are relevant to the issues in the case. 6 I have considered also the application of s 126B of the Evidence Act, 1995. This is not a case in which it would be appropriate to direct that the evidence sought to be adduced should not be elicited. ***************