Reported Decision: 181 A Crim R 372 New South Wales Court of Criminal Appeal CITATION: Jovanovski v R [2008] NSWCCA 9 HEARING DATE(S): 30 January 2008 JUDGMENT DATE: 30 January 2008 JUDGMENT OF: Hodgson JA at 1; Kirby J at 26; Buddin J at 27 EX TEMPORE JUDGMENT DATE: 30 January 2008 DECISION: The application for leave to appeal is refused. CATCHWORDS: PRACTICE - Subpoenas - Subpoena of documents concerning counselling sessions with a witness - Whether inspection should be granted - Legitimate forensic purpose - Reasonable chance of supporting defence - Whether test different where forensic purpose concerns credibility only. LEGISLATION CITED: Evidence Act 1995 ss 102 and 103 CATEGORY: Procedural and other rulings Alister v The Queen (1984) 154 CLR 404 CASES CITED : R v Saleam (1989) 16 NSWLR 14 NSW Commissioner of Police v Tuxford [2002] NSWCA 139 Roads and Traffic Authority of New South Wales v Conolly, [2003] NSWSC 327, (2003) 57 NSWLR 310 Tony JOVANOVSKI (App) PARTIES: Ms A KARAS (Resp) REGINA FILE NUMBER(S): CCA 2007/5603 D C McCallum (App) COUNSEL: J Healey (Resp: Ms A Karas) Crown (not represented) SOLICITORS: Russell McLelland Brown Lawyers (App) Dahlmann Burke Lawyers (Res: Ms A Karas) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 07/41/0170 LOWER COURT JUDICIAL OFFICER: Conlon DCJ LOWER COURT DATE OF DECISION: 24 October 2007 IN THE COURT OF CRIMINAL APPEAL 2007/5603001 HODGSON JA KIRBY J BUDDIN J 30 JANUARY 2008 Tony JOVANOVSKI v REGINA Judgment 1 HODGSON JA: On 29 November 2007, Conlon DCJ determined an application by the applicant for access to documents produced under subpoena directed to Illawarra Counselling Centre, requiring production of all documents and records relating to a named person, who is the complainant in respect of the offences with which the applicant is charged. 2 Access was opposed by the complainant, and the primary judge granted access to two paragraphs of one note of a counselling session 15 January 2007, but refused access to any other documents produced. The applicant seeks leave to appeal from that decision. 3 I will briefly outline the circumstances. 4 At the time of hearing before the primary judge, the applicant stood charged with three offences to which he had pleaded not guilty, namely that the appellant: 1. On or about 24 November 2006 commencing at Coniston, in the State of New South Wales, detained [the complainant] without her consent and with intent to obtain an advantage, namely to interrogate her, and at the time of the detaining actual bodily harm was occasioned to [the complainant]. 2. On or about 27 December 2006 at Figtree, in the State of New South Wales, did steal a motor vehicle, namely a Toyota Celica registration number KAR-44S. 3. On 1 January 2007 at Figtree, in the State of New South Wales, did intimidate [the complainant] with intent to cause [the complainant] to fear physical harm. 5 Before the primary judge, the Crown provided statements to the police made by the complainant concerning the alleged incidents, these statements being dated 2 March 2007 and 22 July 2007, and it also produced a Post-Committal Summary and Checklist. 6 The primary judge recorded that the documents produced were case notes made by a counsellor for two sessions, on 15 January 2007 and 13 February 2007, totalling three A4 pages for the two sessions. 7 In his decision the primary judge noted that Ms Healey, counsel for the complainant, submitted that there was no legitimate forensic purpose for access to the documents. 8 Mr McCallum, counsel for the applicant, made the following submissions: Mr McCallum of Counsel submitted that the legitimate forensic purpose was that the documents, and information contained in them, goes to the credit of the complainant. He submitted that access to the documents would show either one of three things: 1. If there is nothing in the notes about the actions of the accused towards the complainant, it would show that the victim did not disclose such information to the counsellor and that could be used to discredit the complainant; 2. If the complainant had in fact disclosed information relating to the accused to the counsellor, and it was inconsistent with the information provided by her to police, then again, it would discredit the complainant, or; 3. If the complainant had disclosed information relating to the accused to the counsellor, and it was consistent with the information provided by her to police, then Mr McCallum would not take the matter further and would not cross-examine the complainant regarding the matter. 9 The primary judge referred to principles set out in the cases of the Roads and Traffic Authority of New South Wales v Conolly [2003] NSWSC 327, (2003) 57 NSWLR 310, Alister v The Queen (1984) 154 CLR 404, R v Saleam (1989) 16 NSWLR 14, and NSW Commissioner of Police v Tuxford [2002] NSWCA 139. He concluded his discussion of the principles by quoting the following statement by Adams J in the RTA case: I consider that the identification of the legitimate forensic purpose together with the reasonable chance that the documents in question might support the defence, is sufficient to justify a subpoena seeking the documents. 10 He concluded his decision with the following paragraphs: In applying the above principles, I am satisfied that consequent upon Mr. McCallum's identification of the legitimate forensic purpose, "it is 'on the cards that the documents would materially assist the accused in his defence". However, I am also satisfied that only a very small portion of the documents could be relevant for this purpose. Indeed the case notes of 13 February 2007 are simply not capable of giving rise to a legitimate forensic purpose. Accordingly, it is my decision that access will be granted with regard to two paragraphs only from the case notes of 15 January 2007 (being paragraphs 5 and 6). I refuse access to any other part of the documents. It should be noted that no evidence has been placed before me as to the manner in which the notes were recorded, their purpose nor whether they were made contemporaneously. Accordingly it is my view that caution needs to be exercised in any attempted use of the information contained in these two paragraphs. 11 The applicant seeks leave to rely on the following grounds of appeal: 1. His Honour erred in withholding access to the documents produced on the basis that, in his view, only a very small portion of the documents could be relevant for a legitimate forensic purpose after accepting that a legitimate forensic purpose had been demonstrated. 2. His Honour erred in finding that the case notes of 13 February 2007 are simply not capable of giving rise to a legitimate forensic purpose. 12 In his written submissions Mr McCallum, for the applicant, referred to a number of statements concerning the notes made in the course of argument by the primary judge, after he had inspected the notes: (a) "...when you read those two documents it's merely a report of how a young person is now doing in counselling and she seems to be doing okay." (Appeal book p13 at 35) (b) In relation to the case note of 13 February 2007 "... it merely amounts to a bit of a wrap up of how she might be progressing with a new group of friends." (Appeal book p17 at 40) (c) "The notes are brief totalling only 3 A4 pages for the two sessions. The notes indicate that there were various topic areas covered during the sessions, the great majority of which are not related to this matter." (Appeal book p32 para 2) 13 He referred to the statement by Adams J in the RTA case, which was quoted in the primary judge's decision, and the following sentence in Adams J's judgment: It is not necessary for a party to show it is more probable than not either that the particular defined documents exist or that they will assist his or her case. 14 The written submissions quoted the following statement by Hunt J in R v Saleam (1989) 16 NSWLR 14 at page 18: If no public interest immunity or other privilege is claimed (and upheld), and if a legitimate forensic purpose for their production has been demonstrated, the judge should not withhold access to the documents simply on the basis that in his view that purpose would not be satisfied in that particular case because he can see nothing in the documents which will in fact assist the accused in his defence. Provided that a legitimate forensic purpose has been demonstrated, it should be for the accused (or, in appropriate cases, for his legal advisers only) to satisfy himself on that score after his own inspection of the documents. (at p18 F-G) 15 The written submissions continued: 5.4 His Honour's reasons demonstrate that he did accept that there was a legitimate forensic purpose for which access to the documents produced was sought, and that it was "on the cards" that the documents would materially assist the accused in his defence. By then refusing access to all but two paragraphs of the documents on the basis that, in his view, only those parts of the documents were relevant for that purpose, it is respectfully submitted that the approach taken by his Honour is in contrast to the above principles discussed by Hunt J in R v Saleam . It is submitted that, after having accepted that a legitimate forensic purpose had been demonstrated, and no claim for privilege having been established, access to all of the documents should have been granted - if, for some reason, not to the accused then at least to his legal representatives. 5.5 Even if, as his Honour observed, the great majority of topic areas covered during the counselling sessions were not related to the matters before the Court, it is submitted that the forensic purpose for which access to the documents was sought remains equally as legitimate because: (a) There is a reasonable chance that the topic areas covered might touch upon matters that are likely to be of significance in terms of the state of mind of the complainant at that time, her reliability and/or credibility and therefore the course of the cross-examination of her at the trial; and (b) Counsel for the accused ought to be in the position of being able conduct his cross-examination of the complainant at the trial comfortable in his own determination as to whether or not any of the matters referred to in the counselling notes have any bearing on the proposed course of cross-examination. 16 In relation to ground 2, the written submissions included the following: 6.1 As referred to above at paragraph 3.1 (b), his Honour's observations of the case note dated 13 February 2007 were that it "merely amounts to a bit of a wrap up of how she might be progressing with a new group of friends." 6.2 It is submitted that there is still a legitimate forensic purpose in terms of the cross-examination of the complainant because: (a) The complainant records in her statement to police dated 2 March 2007 that she is still receiving counselling and seeing someone from the Illawarra Counselling Centre. (Appeal book p29) (b) The fact that the case note from 13 February 2007 was the most recent document produced in response to the subpoena dated 5 October 2007 is indicative that she has had no further counselling since that date. (c) The description ascribed to the case note by his Honour as amounting to a bit of a "wrap up" is itself suggestive of closure. 17 In oral submissions, Mr McCallum put that the primary judge, having stated that a legitimate forensic purpose had been identified, and having stated that it was on the cards the documents would materially assist the accused in his defence, should, pursuant to the principles identified by him and the principles stated by Hunt J in Saleam, have granted access to the whole of the documents. He submitted that by rejecting access to the documents on the basis that only a small portion of the documents could be "relevant", the primary judge applied an incorrect test. 18 In my opinion, the judgment of the primary judge is correctly understood as applying the principles that the primary judge had stated. The question whether access should be granted depended upon the primary judge finding a legitimate forensic purpose, and also finding that there was a reasonable chance that documents to which access was to be granted might support the defence. 19 Since the primary judge said he was applying those principles, in my opinion the relevant part of his decision is correctly understood as indicating a finding that only the two paragraphs to which access was granted were documents in respect of which there was a reasonable chance that they might support the defence. In my opinion the judgment is correctly understood as making a finding that, as regards the remainder of the material, there was not a reasonable chance that the documents in question might support the defence. 20 So understood, the judgment applied the correct principles. In those circumstances this Court would intervene only if it was satisfied that the result reached by the primary judge was wrong. I have looked at the documents myself, and having done so, I am certainly not satisfied that the primary judge was wrong in his conclusion. 21 One matter that I think is material to this issue is the provision made by the Evidence Act 1995 in ss 102 and 103. 102 The credibility rule Evidence that is relevant only to a witness's credibility is not admissible. 103 Exception: cross-examination as to credibility (1) The credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence has substantial probative value. (2) Without limiting the matters to which the court may have regard in deciding whether the evidence has substantial probative value, it is to have regard to: (a) whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth, and (b) the period that has elapsed since the acts or events to which the evidence relates were done or occurred. 22 The forensic purpose that was identified in this case was that the material could be relevant to the credibility of the complainant. Section 103 makes it clear that evidence adduced in cross-examination in respect of credibility will be admitted only if it has substantial probative value. It is therefore a somewhat higher test than in relation to evidence that is relevant to an issue. 23 For that reason, I would comment that the statement by Hunt J in R v Saleam at page 21, that the test in relation to material that goes only to impugn credit is "no stricter", was made before the passage of the Evidence Act, and may no longer be correct. 24 As regards the second ground of appeal, Mr McCallum relied on the primary judge's remark that a case note was a "wrap up", suggesting that the complainant's statement, made on 2 March 2007, that she was still receiving counselling, was incorrect. I would only say in respect of that, that this interpretation of the primary judge's remark is not borne out by my inspection of the documents. 25 For those reasons I would refuse the application. 26 KIRBY J: I too have read the notes and I agree with the judgment of Justice Hodgson and his reasons. 27 BUDDIN J: I also agree and I also have had the opportunity of reading the notes for myself. 28 (Counsel addressed on costs) 29 HODGSON JA: The application for leave to appeal is refused. 30 The court gives leave to the respondent to make a written submission in relation to costs within seven days, and if such a submission is made, the applicant has seven days to respond to it. 31 I note that the Registrar should now return the subpoenaed documents and, as we noted through the course of this case, it may be that under changed circumstances the applicant may get a different ruling from the trial judge. oOo 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.