New South Wales Supreme Court CITATION : R v Sood [2006] NSWSC 695 HEARING DATE(S) : 3 - 5 July 2006 JUDGMENT DATE : 10 July 2006 JUDGMENT OF : Simpson J Crimes Act 1900 s83 LEGISLATION CITED : Evidence Act 1995 Part 3.10, Division 1A, s97, s98, s101, s126A, s126B, s126E, s128(8) Medical Practice Act 1992 s66 Cornwell v R [2006] NSWCCA 116 Gardiner v R [2006] NSWCCA 190 CASES CITED : R v Cornwell [2003] NSWSC 660 R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308 R v Lockyer (1996) 89 A Crim R 457 PARTIES : Crown Suman Sood - Accused FILE NUMBER(S) : SC 2005/2353 COUNSEL : M Tedeschi QC/ T Smith - Crown P Boulten SC / M Buscombe - Accused SOLICITORS : S Kavanagh - Crown P Tsaousidis - Accused IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION SIMPSON J Monday 10 July 2006 2005/2353 Regina v Suman Sood JUDGMENT: ON ADMISSIBILITY OF EVIDENCE 1 HER HONOUR: The accused is charged on an indictment that contains three counts. They are: Count 1: that on 20 May 2002 she did unlawfully administer to a named woman a drug with intent to procure her miscarriage; Count 2: that on 20 May 2002 she did unlawfully cause to be taken by the same woman a drug with intent to procure her miscarriage; Count 3: that on 21 May 2002 she did feloniously slay a named child. 2 Counts 1 and 2 are brought under s83 of the Crimes Act 1900, which relevantly provides as follows: "83 Administering drugs etc to woman with intent Whosoever: unlawfully administers to, or causes to be taken by, any woman, whether with child or not, any drug or noxious thing, … with intent in any such case to procure her miscarriage, shall be liable to imprisonment for ten years." 3 Count 3 is a charge of manslaughter. The Crown proposes to put the case against the accused in respect of this count in two alternative ways. The first is manslaughter by unlawful and dangerous act; the alternative is manslaughter as a consequence of criminal negligence. 4 The key to the interpretation of s83 is the word "unlawfully". In a judgment that has stood, and been accepted, for 35 years, concerning the proof of unlawfulness for the purposes of the section, Levine Ch.Q.S. held that unlawfulness is established where the prosecution proves that a person whose conduct intentionally procures a miscarriage does so in the absence of: "… an honest belief on reasonable grounds that what [he or she] did was necessary to preserve the [woman] involved from serious danger to [her] life or physical or mental health, which the continuation of pregnancy would entail not merely the normal dangers of pregnancy and child birth" and that in the circumstances the danger of the operation was not out of proportion to the danger intended to be averted: R v Wald (1971) 3 NSWDCR 25. 5 A trial of the charges against the accused was fixed to commence on 3 July 2006. On or about 15 June 2006 the Crown served on the legal representatives of the accused notices under ss97 and 98 of the Evidence Act 1995, indicating its intention to adduce evidence of tendency and coincidence. The Crown has since abandoned reliance upon coincidence evidence but maintains its intention to adduce evidence of tendency. 6 It therefore became necessary to conduct a voir dire hearing into whether the evidence, or any part of it, ought to be admitted. Argument took place on 3, 4 and 5 July 2006. 7 It is necessary to set out in some detail the nature of the prosecution case. What follows is principally drawn from a Crown case statement with which I was provided. The Crown case is that, in May 2002, a young woman to whom I will refer as LT found that she was pregnant. An ultra-sound examination disclosed that the duration of the pregnancy was between 22 and 24 weeks. 8 A cousin of LT made enquiries on her behalf of a number of medical facilities with a view to arranging the termination of the pregnancy. All except one of these declined to perform the procedure, giving as their reason that a termination of a pregnancy of longer than 20 weeks is, in NSW, a contravention of the law. (It was common ground that this was incorrect.) 9 The accused is a medical practitioner who conducts her own clinic at Fairfield, specialising in pregnancy terminations. The clinic is known as the Australian Women's Heath Centre ("AWHC"). The accused was contacted by LT's cousin, and agreed to perform the procedure, quoting a fee of $1,800. An appointment was made for LT to see the accused on Saturday 18 May 2002. LT duly attended. The receptionist handed her some forms to complete, which included provision for her name, address and other personal particulars. The accused then saw LT and her cousin in an office and LT handed the accused the ultra-sound report. The accused sought confirmation (which was given) that LT wished to proceed with the termination. LT asked about any risks associated with a late term termination. The accused reassured her that the only complications were possible heavier and more prolonged than usual bleeding. The accused did not physically examine LT. Nor did the accused counsel LT with respect to the procedure or alternatives to the procedure. 10 A woman, apparently an employee of the accused, an enrolled nurse, went through a risk assessment form, which LT, her cousin and the nurse signed. The accused made an appointment for LT to re-attend at the clinic on Monday 20 May 2002 for the procedure to be performed. Neither the accused nor her employee gave or offered counselling in respect of the proposed procedure. The accused told LT that she would be given some tablets. 11 On Monday 20 May LT returned to the clinic. The accused told her that the tablets to which she had earlier referred had cost $500. She required LT to pay that amount. LT had only $400 with her and this she gave to the accused. The accused told her that it would be necessary for her to return the following day, for the procedure, and to bring the remainder of the money. She did not issue a receipt for the $400 paid by LT. 12 The accused then inserted one small white tablet into LT's vagina and gave her two tablets to take orally with a glass of water. She explained that the tablets were to "make the baby soft and easier to come out". She told LT to remain in the foyer for one hour before leaving. The administration of the tablet vaginally gives rise to the first count in the indictment. The supply to LT of two tablets to take orally gives rise to the second count. 13 Before LT left the clinic the accused told her to return the following morning for the procedure. She gave LT a card bearing her telephone number, and told her to call in the event of complications. 14 About 7.00 pm that evening LT began to experience labour pains. Her cousin telephoned the accused and advised her that LT was experiencing severe abdominal pain. The accused advised her to take a pain killer, which she did. 15 At 4.00 am the following morning LT was in an advanced stage of labour and experiencing two-minute contractions. She sat on a toilet, and gave birth to the baby (a boy) which dropped into the toilet bowl. An ambulance was called. Ambulance officers retrieved the baby from the toilet bowl and formed the opinion that he was dead. They therefore made no attempt to preserve his life, and treated him as a dead body, which they conveyed to Westmead Hospital. In fact, the baby was alive and remained alive until 8.05 am, when he died. Later that day, unaware of these events, the accused telephoned LT enquiring whether she was coming to the clinic for the procedure. LT told her that she had delivered the baby and was in hospital. The accused reminded her that she still owed $100 for the tablets. 16 It is the Crown case that the tablets given to LT by the accused were Cytotec, a commercially produced prostaglandins drug that has the effect of dilating the cervix to enable evacuation of the foetus. 17 Given that the proceedings are criminal, and that the trial has not yet commenced, obviously the accused has not been required to identify her position in relation to the allegations. However, there have been related proceedings in the Medical Board of NSW, and in the Common Law Division of this Court, concerning the accused's entitlement to continue to practise medicine. In June 2002 an inquiry under s66 of the Medical Practice Act 1992 was conducted. For that proceeding the accused provided a statement in which she outlined her account of the circumstances of her involvement with LT. She also orally answered questions put to her in that inquiry. 18 Subsequently, in the proceedings in the Common Law Division, she swore an affidavit. 19 Although the s66 proceedings were not recorded or transcribed, two accounts of what there occurred have survived. One is constituted by comprehensive notes taken by a solicitor employed by the legal representatives of the accused; the other in the Determination resulting from the s66 inquiry. No challenge has been made to the accuracy of these records. There are also the statement and affidavit of the accused. 20 From these a fairly clear picture of the accused's response to the Crown allegations emerges. 21 I appreciate that, for the purpose of the trial, the accused is not bound by what she has previously represented, but it was not suggested that her case at trial would be in any significant respect different from the case she there advanced. Although the material casts some light upon what might be expected in the trial, it has limited relevance for the purpose of the present determination. 22 What is of significance from the material is this. The accused told the Medical Board that she did not perform terminations on patients whose pregnancy exceeded 20 weeks. She said that this was because her insurance policy did not cover her in respect of such procedures. She said that she told LT that post-20 week terminations were unlawful in NSW, but were permitted by the law in Queensland. She said that she had not agreed to perform a termination on LT or given her any medication which would have had that effect. She denied administering the tablet to LT's vagina. She denied asking for or receiving money. She asserted that her intention was to refer LT to Brisbane for termination. 23 The present issue concerns evidence to be tendered by the Crown on two bases. The evidence relates to two other patients of the accused. The Crown seeks to tender the evidence as evidence of tendency under s97 of the Evidence Act. It seeks to rely on some parts of the same evidence as evidence that the accused, in and to the Medical Board, told lies which reflect upon her credibility. tendency evidence 24 I will deal with the proposed tendency evidence first. Before outlining the nature of the evidence, it is convenient to set out the relevant statutory provisions and other legal concepts. 25 The Evidence Act relevantly provides as follows: "S97 The tendency rule (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind, if: (a) …; (b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. S101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution (1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98. (2) Tendency evidence about a defendant … that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant. (3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant. (4) …" "Probative value" is defined in the Dictionary to the Act in the following terms: "… the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue." 26 A "fact in issue" is a matter in issue in the trial as determined by substantive law and pleadings: see Odgers: Uniform Evidence Law, Thomson Law Book Company, (the loose leaf version) para 1.3.4460; see also Cornwell v R [2003] NSWSC 660, in which Howie J (in the context of s128(8) of the Evidence Act) said: "6 This subsection gives rise to a consideration of what is a "fact in issue" in a criminal trial. ... 8 In my view a fact in issue in a criminal trial is any matter that must be ultimately determined by the jury in order to decide whether or not an accused person is guilty of the offence charged. A fact in issue in a criminal trial would generally be an element of the offence charged but might include any other matter that must be determined in order to find the accused criminally liable for that offence. It may include the issue of mental illness, self defence, or any statutory defences and, in a charge of murder, issues such as provocation and substantial mental impairment. They are examples of the fundamental issues that the jury must resolve in order to determine the charge brought by the Crown against the accused. 9 I respectfully agree with the view expressed by Odgers in Uniform Evidence Law (5th Ed, Lawbook Co) at [1.3.80] that a fact in issue is not any fact in dispute in the proceedings. It does not include those factual disputes the resolution of which may merely assist the jury in determining whether the accused has committed the offence charged. This is so regardless of how probative or significant the fact might be to either the Crown case or the accused's defence of the charge. A fact does not become a fact in issue simply because of the way that the case is conducted by the Crown or the accused. It seems to me that, generally speaking, a court would be able to determine what was a fact in issue for a particular criminal proceeding without understanding the nature of the Crown case or the defence to it." 27 These remarks were apparently endorsed by the Court of Criminal Appeal in R v Cornwell [2006] NSWCCA 116 (an appeal which, while involving the same individual as the judgment of Howie J, was not an appeal in respect of the same matter: see [59] – [62]). 28 I have previously endeavoured to analyse the judicial processes involved in the determination of the tender of tendency evidence: see R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308 at [33] – [36]; Gardiner v R [2006] NSWCCA 190 at [123] – [125]. In Gardiner I defined the three steps as: "125 … (i) determining whether the evidence has probative value; that is, determining whether it is capable rationally of affecting the assessment (by the tribunal of fact) of the probability of a fact in issue; (ii) if it is determined that the evidence is so capable (and therefore has probative value), determining whether that probative value is capable of being perceived by the tribunal of fact as significant (as explained in Lockyer [ R v Lockyer (1996) 89 A Crim R 457]); (iii) (in a criminal case) if it is determined that the evidence is capable of being so perceived, applying the s101(2) test, and determining whether the probative value of the evidence substantially outweighs any prejudicial effect upon the defendant. The first step in the process necessarily further involves the identification of the fact in issue [the assessment of] the probability of the existence of which is said to be affected by the evidence tendered as tendency evidence." 29 I turn now to outline the evidence to be tendered by the Crown as tendency evidence. the proposed tendency evidence 30 As mentioned above, the evidence sought by the Crown to be admitted as tendency evidence relates to two patients other than LT. One, with whose statement I was provided, gave oral evidence in the voir dire, as a result of which (after cross examination) the Crown reduced the extent to which it proposes to rely on her evidence for this purpose. Although she made no application for suppression of her identity, in these reasons I will refer to her as ND. 31 The other patient is in a very different category, and the tender of her evidence raises an additional, complicating, issue. I will refer to her as XX. the evidence of ND 32 In her statement, ND said that, in late 2001, tests revealed that she was pregnant. She did not know the term of her pregnancy. On 14 December 2001 she was referred to the accused, who in turn referred her for ultrasound examination. The ultrasound showed a gestation of 15 weeks and five days. The accused gave ND a piece of paper with some information about the proposed procedure, and asked her to sign three Medicare forms. ND paid $140. She did not recall whether she was given a receipt. 33 On 18 December ND returned to the clinic and paid to the accused an additional sum of $300. She was not given a receipt for this payment. She completed some additional Medicare forms. The accused gave her two pills, with a glass of water; she explained that the pills were "to make your uterus softer". ND took the pills and waited for about an hour. At the end of that time another woman (apparently employed at the clinic) told ND to go to the toilet. 34 In her statement ND asserted that neither the accused nor any other person counselled her. 35 In its tendency evidence Notice dated 15 June 2006, the Crown identified the "tendencies" on which it sought to rely in the following terms: "The Crown intends to adduce tendency evidence to demonstrate that the accused's practice was to perform terminations without proper consultation, and without making proper enquiries regarding the safety, health and welfare of the Mother. The Crown further intends to adduce evidence that it was the accused's practice in post-15 week pregnancies to cause tablets to be taken by a patient prior to a termination, and, at the time of providing those tablets to a patient, to use words similar too (sic) 'To make the uterus softer,' when explaining to the patient the purpose of the tablet." By letter dated 28 June 2006 the Crown supplemented this by advising that it proposed to rely on the evidence of ND to establish: "1. The accused's tendency to provide a glass of water, with tablets, to be taken orally by a patient; 2. the tendency for money in the form of cash to be paid directly to the accused without a receipt being issued." 36 Following the cross examination of ND, in which a series of documents was shown to her, resulting in her acknowledgment that the consultation with, and advice provided by or on behalf of, the accused, was rather more extensive than she had earlier recalled, the Crown withdrew reliance on the first of the tendencies set out in the 15 June letter; that is, the Crown no longer seeks to rely on ND's evidence as establishing a tendency on the part of the accused to perform terminations without proper consultation or counselling. It maintains, however, its application to adduce the evidence for the purpose of proving that the accused had the following tendencies: i. to cause tablets to be taken (orally) by a patient prior to termination, and, at the time of doing so, to explain the purpose of the tablets as "to make the uterus softer" (or similar); ii. to provide, with the tablets, a glass of water; iii. to receive from the patient fees in cash without the issue of a receipt. 37 As I set out in Fletcher, and have repeated above, the first step in the process of determining whether the evidence ought to be admitted as tendency evidence under s97 is to assess whether that evidence is capable of having probative value – that is, whether it is capable rationally of affecting the assessment of the probability of the existence of a fact in issue. The anterior question therefore requires the identification of the fact in issue, bearing in mind that "fact in issue" is not the same thing as "fact in dispute". 38 The second question, if the first is answered affirmatively, is to decide whether that probative value would be regarded by the jury as significant, meaning "important" or "of consequence": see Lockyer. 39 What, then, is the fact (or are the facts) in issue the assessment of the probability of which is said to be affected by the evidence of ND? In relation to each count on the indictment the facts in issue are different. As I presently see it, the facts in issue (that is, the foundational facts essential to proof of each charge) are: count 1: that (i) the accused administered to LT a drug (Cytotec, which, the Crown asserts, she administered vaginally); (ii) she did so with intent to procure miscarriage; (iii) by reason of the circumstances in which the drug was administered, the administration was unlawful. count 2: that (i) the accused caused LT to take a drug (by giving to her a drug, Cytotec, with advice or instruction that she take it orally); (ii) she did so with intent to procure miscarriage; (iii) by reason of the circumstances in which the drug was given to LT, giving it to her was unlawful. count 3: (a) manslaughter (by unlawful and dangerous act): that (i) LT gave birth to a live baby; (ii) the accused did an act that caused the death of that baby; (iii) that act was unlawful and dangerous; (b) manslaughter (by criminal negligence): that (i) LT gave birth to a live baby; (ii) the accused was under a duty of care to that baby; (iii) by act or omission (or a series thereof) the accused caused the death of that baby; (iv) the accused's act(s) or omission(s) that caused the death amounted to gross criminal negligence. 40 As I presently understand the Crown's position, it will seek to establish unlawfulness, for the purposes of counts 1 and 2, and count 3 so far as it relies on an unlawful and dangerous act, by proving that the accused did not have the requisite honest belief on reasonable grounds (as required by the Wald test). This it will attempt to do by showing that the accused failed properly to inform herself about any serious danger to the life or physical or mental health of LT. In each case, in the circumstances, that fact is a foundational or ultimate fact such as properly to be characterised as a fact in issue. 41 In respect of count 1, there were initially two facts in issue upon which ND's evidence was said to bear; firstly the administration of a drug, and secondly, the absence of the requisite state of mind of the accused. The Crown case is that the administration of the drug was done by the accused inserting a tablet into LT's vagina. 42 In respect of count 2 the facts in issue upon which ND's evidence was said to bear were, firstly, causing a drug to be taken by LT, and, secondly the absence of the requisite state of mind of the accused. The Crown case is that causing LT to take the drug was done by the accused supplying to LT two tablets, together with a glass of water. In each case the Crown asserts that the accused explained the purpose of the drug as "to soften the uterus" or words to that effect. 43 Following the cross examination of ND, the Crown no longer seeks to rely on her evidence as tendency evidence bearing upon the state of mind of the accused. There remains in respect of each of these counts, one fact in issue upon which the Crown seeks to rely on ND's evidence – the administration (count 1), and the supply (count 2), of the drug. 44 In respect of the relevant fact in issue in the second count, I have no difficulty in concluding that the evidence of ND is capable of bearing upon the assessment of the probability of that asserted fact – that is, that the accused supplied to LT two tablets, with advice or instruction to take them orally. ND's evidence is that she, too, was handed two pills or tablets by the accused, with a glass of water, with a similar explanation. It is not to the point that handing to the patient a glass of water, or giving the explanation, are not facts in issue; the fact in issue is the supply to the patient of tablets or pills; the surrounding detail, such as the glass of water and the explanation, are circumstances which bear upon the assessment of the probability of the existence of that foundational fact, and could be perceived by the jury as rendering LT's evidence more likely to be correct. 45 There is at least one other circumstance, not mentioned by the Crown, which may also assist in the jury's assessment of the probability of that fact; LT claims to have been told to wait an hour before going home; ND claims to have been kept waiting for about an hour. There are also some divergences between the accounts given by the two patients. Particularly, while LT claims to have been told to go home and return the following day, ND underwent the termination procedure on the same day. 46 Given the importance of the fact in issue, and the relevant similarities in the surrounding details concerning the conduct attributed to the accused, I have concluded that ND's evidence in this respect is capable of having probative value in relation to the first fact in issue in respect of the second count. 47 The connection is rather more tenuous in respect of the fact in issue in relation to the first count, the asserted vaginal administration of the drug. On the material presently available to me, I do not think ND's evidence is capable of bearing upon the jury's assessment of the probability that the accused vaginally administered a drug to LT. It may be that other evidence in the trial will affect that conclusion. At present, however, the tendency evidence to be proffered by the Crown fails the first test of admissibility in respect of the first count – that is, it is not capable of having probative value. 48 The next question is whether, in relation to the second count, the jury would be likely to regard that evidence as important or of consequence – that is, as significant. This task is to be undertaken having regard to other evidence anticipated to be called by the Crown (as the party tendering the tendency evidence). S97 does not envisage taking into account on this question evidence expected to be adduced (either by cross examination of Crown witnesses, or in a defence case) on behalf of the accused; I therefore exclude from consideration the evidence that has been put before me showing that, on another occasion, the accused denied the administration to LT of a drug having the specified properties. 49 I have reached the conclusion that the evidence of ND concerning the provision to her of "pills", with a glass of water, and with the stated explanation, would probably be regarded by the jury as having significant probative value. It renders the evidence to be given by LT more probably credible. 50 It remains then to apply the test contained in s101(2), that is, to balance the probative value of the evidence against any prejudicial effect it may have on the accused. The prejudicial effect of evidence is the risk that it might be, in some unfair way, misused by the jury; in other words, used for a purpose not permitted by the law of evidence: R v BD (1997) 94 A Crim R 131 at 139; Pfennig v The Queen [1995] HCA 7; 182 CLR 461 at 487 – 8; Papakosmas v The Queen [1999] HCA 37; 196 CLR 297. 51 On behalf of the accused it was argued that the subject matter of this trial – pregnancy termination – is so fraught with high levels of emotion and strongly held belief on the part of some members of the community that any evidence emphasising that the accused has a practice of performing such procedures is likely to be productive of prejudice in the relevant sense. I accept that there are, in the community, strongly held views on this subject matter. However, a filtering process will take place before the commencement of the trial; the jury panel will be advised of the nature of the trial, and any members who feel themselves unable to bring an impartial mind to bear on the issues will be given an opportunity to seek to be excused. Further, the jury, once empanelled, will be given directions in strong terms concerning the task they must undertake, and the setting aside of prejudice. The law presumes, as it must, that all members of the jury will comply with those directions. Finally, it will be apparent, from the Crown evidence in relation to LT alone, what the nature of the accused's practice is. Accordingly, I do not think that evidence that ND underwent a termination of pregnancy in the clinic conducted by the accused is likely to create any additional prejudice. I am satisfied that the probative value of the evidence in relation to count 2 substantially outweighs any prejudicial effect it may have upon the accused. 52 I will therefore admit, as tendency evidence in relation to count 2, that part of ND's evidence. This appears to be that contained in her statement in paragraphs 17 and 18, together, of course, with such other evidence as is necessary to make sense of that evidence. 53 Since I have found that the evidence is not to be admitted in relation to count 1, and is not relevant to count 3, unless, in the ebb and flow of the trial as it proceeds, the position changes in relation to count 1, it will be necessary to formulate directions to the jury as to the use that may be made of that evidence. 54 That disposes of the first two tendencies identified in paragraph [35] above. 55 The remaining tendency sought to be established by ND's evidence is an asserted tendency on the part of the accused to receive cash money while not issuing a receipt. There is no fact in issue, properly defined, that I can discern, on which this evidence can conceivably cast any light. Proof that the accused had a tendency to receive cash money without issuing a receipt does not bear upon any of the foundational facts the Crown must establish in proof of any of the three counts. The tender of this part of ND's statement (as tendency evidence) therefore fails at the threshold. Neither do I think that the evidence is capable, having regard to the true issues in the trial, of having probative value; it follows that it could not have significant probative value. I will not admit that evidence. 56 Finally, the receipt of cash payment itself is redolent of suspicion of dishonest motive; evidence of failure to issue a receipt exacerbates that suspicion. This gives rise to a real risk of misuse or of diverting the jury from its proper task. Even if I took a different view on all the other tests, I would exclude this evidence under s101(2). the evidence concerning XX 57 It is necessary to set out a little background. 58 On the Crown case, XX was a patient who underwent termination of pregnancy procedure in the AWHC on the same day as LT was scheduled to have her pregnancy terminated. An ultra-sound examination report shows that XX's pregnancy was of 23 weeks' gestation. However, the Crown accepts that it cannot prove that the accused had seen or was aware of the ultrasound and, that, in fact, such evidence as there is tends to suggest the contrary. Notes made by the accused indicate that XX was unsure of information from which the period of gestation could be calculated. The accused therefore made an estimate of a pregnancy of 20 weeks and one day. 59 The procedure was sought by XX expressly because medical examination had disclosed a serious abnormality in the foetus, with a likelihood (or certainty) of the birth of a child with serious congenital abnormalities. I was told (without direct evidence) that, following the procedure, XX suffered both physical and emotional consequences, the latter such that the Crown determined not to subject her to the ordeal of being called as a witness. 60 The Crown seeks, however, to tender certain evidence concerning her treatment by the accused. The most significant aspect of this evidence involves the point of the pregnancy at which the termination was performed. This it can do via an ultrasound examination report, which has been produced on subpoena. 61 XX has refused to confer with representatives of the Crown. There was sufficient basis, from what I was told, to infer that she may oppose the use of any evidence concerning her medical history. 62 Part 3.10, Division 1A of the Evidence Act thus became relevant. S126B relevantly provides as follows: "126B Exclusion of evidence of protected confidences (1) The court may direct that evidence not be adduced in a proceeding if the court finds that adducing it would disclose: (a) a protected confidence, or (b) the contents of a document recording a protected confidence, or (c) protected identity information. (2) The court may give such a direction: (a) on its own initiative, or (b) on the application of the protected confider or confidant concerned (whether or not either is a party). (3) The court must give such a direction if it is satisfied that: (a) it is likely that harm would or might be caused (whether directly or indirectly) to a protected confider if the evidence is adduced, and (b) the nature and extent of the harm outweighs the desirability of the evidence being given. (4) Without limiting the matters that the court may take into account for the purposes of this section, it is to take into account the following matters: (a) the probative value of the evidence in the proceeding, (b) the importance of the evidence in the proceeding, (c) the nature and gravity of the relevant offence … and the nature of the subject matter of the proceeding, (d) the availability of any other evidence concerning the matters to which the protected confidence … relates, (e) the likely effect of adducing evidence of the protected confidence …, including the likelihood of harm, and the nature and extent of harm that would be caused to the protected confider, (f) the means (including any ancillary orders that may be made under section 126E) available to the court to limit the harm or extent of the harm that is likely to be caused if evidence of the protected confidence … is disclosed, (g) if the proceeding is a criminal proceeding—whether the party seeking to adduce evidence of the protected confidence … is a defendant or the prosecutor, (h) whether the substance of the protected confidence …has already been disclosed by the protected confider or any other person. (5) The court must state its reasons for giving or refusing to give a direction under this section." 63 By s126A a "protected confidence" is defined as: "… a communication made by a person in confidence to another person (in this Division called the confidant ): (a) in the course of a relationship in which the confidant was acting in a professional capacity, and (b) when the confidant was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law or can be inferred from the nature of the relationship between the person and the confidant." "Protected confider" means: "a person who made a protected confidence". 64 S126E provides for ancillary orders the court may take to limit the possible harm, or extent of the harm, likely to be caused by the disclosure of evidence of a protected confidence. Such action includes orders that all or part of the evidence be heard in camera, and orders relating to the suppression of publication of all or part of the evidence. 65 There is no doubt that the communication between XX and the accused involved protected confidences. XX therefore has standing, pursuant to s126B(2)(b), to apply for a direction under s126B(1). The circumstances were such that I directed the Crown to take such steps as were available to it to notify XX of its intention, and ascertain her wishes and position. This was done and resulted in a handwritten letter, apparently that of XX's husband. It is unnecessary to set out the contents of that letter. It was accepted that it ought to be treated as an application for a direction under s126B(1). 66 S126B(4) sets out the considerations relevant to the determination of such an application. They have some common elements with the test imposed by s97. 67 Not least of these is an assessment of the probative value of the evidence. I remind myself that the substance of the evidence concerning XX on which the Crown seeks to rely is the fact that the accused was said to have performed a termination at a point well beyond 20 weeks' gestation, and well beyond the 20 weeks and one day which she assessed. 68 It is, therefore, again necessary to define the "fact in issue" the assessment of the probability of the existence of which is said to be affected by that evidence. 69 There is no such fact. It is a foundational fact of none of the charges that the accused performed terminations of pregnancy at a point beyond 20 weeks. Depending upon whether the accused adopts the same stance as she adopted in the Medical Board proceedings, such a fact may be a disputed fact, and may become a relevant fact, but, as I have pointed out above, a disputed fact is not the same thing as a foundational or ultimate fact in issue. It is not essential to the Crown, in respect of any of the charges, to prove that the accused performed terminations at a point beyond 20 weeks. 70 In saying this, I do not mean to imply that, depending upon what the accused might advance (either by way of cross examination, or by evidence), evidence in rebuttal would not become admissible. However, at this point, neither for the purposes of s126B(4)(a), nor, for the purposes of s97, is this evidence capable of having probative value. It follows, for the purposes of s126B(4)(b), that the evidence has little, if any, importance. 71 Even if performance of terminations at over 20 weeks could be seen to be a fact in issue, the evidence concerning XX could have little impact. On the accused's assessment, which is the most the Crown can prove as to her knowledge, XX's pregnancy exceeded the cut off point marginally, by only one day. The evidence on the voir dire established unusual circumstances and good reasons for departure from ordinary practices. The evidence concerning XX, even if it had probative value, could not have significant probative value. That is equally a reason for acceding to XX's application for a direction that it not be adduced. 72 If this were not so, some of the other subs(4) considerations would favour refusal of a direction that the evidence not be adduced. Obviously, the charges, particularly count 3, against the accused are very serious. It is probably the case that other evidence to establish the fact sought to be proved is unavailable. It would be a simple matter to permit the evidence to be given in an anonymous form, in such a way that XX's identity was protected. 73 It is difficult to assess the likely effect of adducing the evidence upon XX. She provided in her letter no information about her condition, either physical or emotional. However, it is, I think, obvious that some real potential for harm exists. 74 I will not permit the Crown to adduce, as tendency evidence, evidence concerning XX. evidence proving lies told by the accused 75 The Crown also seeks to rely upon part of the evidence of ND, and the evidence concerning XX, as evidence of a lie told by the accused on a previous occasion, specifically to the Medical Board. The lie relied upon was that she did not carry out terminations of pregnancy on patients whose pregnancy exceeded 20 weeks. 76 The Crown specifically disavowed reliance upon this asserted lie as evidence that the accused acted out of a consciousness of guilt: see Edwards v The Queen [1993] HCA 63; 178 CLR 193. Rather, it relies upon the alleged lie as going to the credibility of the accused. 77 In my opinion the application is entirely misconceived. It is not open to the Crown, before an accused person (or, indeed, any witness) has given evidence, to impugn the credibility of that person. Credibility in a criminal trial arises as an issue in relation to witnesses. At this point the accused is not a witness. Should the accused give evidence, then the position may well be different and, subject to the credibility provisions of the Evidence Act, it may be open to the Crown to cross examine her, or to adduce evidence relevant to her credibility. That question remains for another day. I will not permit the evidence to be given for this purpose. ********** 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.