New South Wales Supreme Court CITATION : R v Peters [2002] NSWSC 1073 FILE NUMBER(S) : SC 70027/02 HEARING DATE(S) : 31 October 2002 JUDGMENT DATE : 31 October 2002 PARTIES : Health Insurance Commission - Applicant in notice of motion Damien Anthony Peters - Accused JUDGMENT OF : Simpson J COUNSEL : J Stephenson - Applicant S Doctor - Accused SOLICITORS : Australian Government Solicitor - Applicant Christopher Levingston & Associates - Accused DECISION : I order that the subpoena upon the Health Insurance Commission on 20 June 2002 be set aside, so far as it requires production of documents concerning Andre Tereapii and Bevan James Frost. I order that the respondent of the notice of motion pay the applicant's costs. IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION SIMPSON J Thursday 31 October 2002 70027/02 REGINA v Damien Anthony PETERS JUDGMENT 1 HER HONOUR: Damien Anthony Peters is charged with two counts of murder, the alleged victims being Andre Tereapii Akai and Bevan James Frost. 2 The trial is fixed to commence on 25 November 2002. I was told that Mr Peters proposes to acknowledge his involvement in the deaths of the two men, but to raise defences of provocation and intoxication which he claims will reduce his liability from murder to manslaughter. 3 In order to obtain material and evidence to support those defences or partial defences, his solicitors served on the Health Insurance Commission a subpoena requiring production of: "A copy of all records maintained by the Health Insurance Commission in respect of the following persons: Damien Anthony Peters, Andre Tereapii Akai, Bevan James Frost. Specifically all records pertaining to prescriptions issued to each of the abovementioned persons in the period from 1 January 1980 to 30 September 2001." 4 On receipt of the subpoena and acting promptly, officers of the Health Insurance Commission wrote to Mr Peters' solicitors advising that the legislative provisions of the Health Insurance Act 1973 and the National Health Act 1953 precluded production of the documents sought in relation to the two deceased men, but provided the relevant material in relation to himself. 5 Solicitors for Mr Peters do not accept the construction placed upon the legislation and press for production of the documents. Accordingly, the Health Insurance Commission by notice of motion seeks orders setting aside the subpoena, insofar as it requires production of documents relating to those two men. 6 Sections 130 of the Health Insurance Act and 135A of the National Health Act are relevantly in similar though not identical terms. I will set out subsections 1 and 2 of section 130 of the Health Insurance Act. 130 Officers to observe secrecy (1) A person shall not, directly or indirectly, except in the performance of his or her duties, or in the exercise of his or her powers or functions, under this Act or for the purpose of enabling a person to perform functions under the Health Insurance Commission Act 1973 , and while he or she is, or after he or she ceases to be, an officer, make a record of, or divulge or communicate to any person, any information with respect to the affairs of another person acquired by him or her in the performance of his or her duties, or in the exercise of his or her powers or functions, under this Act. Penalty:$500 (2) A person who is, or has been, an officer shall not, except for the purposes of this Act, be required: (a) to produce in court any document that has come into his or her possession or under his or her control in the performance of his or her duties or functions under this Act; or (b) to divulge or communicate to a court any matter or thing that has come under his or her notice in the performance of any such duties or functions. 7 I accept that prima facie these subsections, which are essentially replicated in the National Health Act, have the effect contended for on behalf of the Health Insurance Commission. As I understand it, counsel for Mr Peters also accepts that prima facie construction, but relies upon the provisions of subsection 3 of each Act and I set out the provisions of subsection 3 of 130 of the Health Insurance Act. (3) Notwithstanding anything in subsection (1), the Secretary may: (a) if the Minister certifies, by instrument in writing, that it is necessary in the public interest than any information acquired by an officer in the performance of duties, or in the exercise of powers or functions, under this Act, should be divulged, divulge that information to such person as the Minister directs; (b) divulge any such information to an authority or person if: (i) the authority or person is a prescribed authority or person for the purposes of this paragraph; and (ii) the information is information of a kind that may, in accordance with the regulations, be provided to the authority or person; or (c) divulge any such information to a person who, in the opinion of the Minister, is expressly or impliedly authorized by the person to whom the information relates to obtain it. 8 It will be seen that limited disclosure of information held by the Commission is permissible in the circumstances set out in those subsections. 9 Two matters, at least for present purposes, are essential. The first of these is a certificate by the Minister and the second is the Minister's satisfaction that it is necessary in the public interest that relevant information be provided. 10 Counsel for Mr Peters acknowledged, not only that no certificate has been issued but also that none has been sought, but nevertheless pressed the argument that provision of the material is necessary in the public interest. 11 In my opinion, the construction of subsection 3 is beyond doubt and it is not for this Court to be satisfied that production of the material is necessary in the public interest. That is a conclusion that must be reached by the Minister and if the Minister reaches that conclusion an appropriate certificate may be issued. 12 Subsection 3 gives no authority to this Court to override the secrecy provisions of subsections 1 and 2 of each of the relevant sections. Accordingly, I propose to make the orders sought by the Health Insurance Commission in the notice of motion. 13 I order that: (i) the subpoena upon the Health Insurance Commission on 20 June 2002 be set aside, so far as it requires production of documents concerning Andre Tereapii Akai and Bevan James Frost. (ii) I order that the respondent to the notice of motion pay the applicant's costs. ********** Last Modified: 11/18/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.