District Court New South Wales Medium Neutral Citation: R v Joshua Veitch [2012] NSWDC 174 Hearing dates: 07/05/2012 Decision date: 08 May 2012 Before: S Norrish QC DCJ Decision: See paragraph 52. Catchwords: SUBPOENA: Criminal Procedure, protected confidence Legislation Cited: Criminal Procedure Act 1986, ss 295-306 Evidence Act 1995, s 66, s 55 Cases Cited: Commissioner for Railways v Small (1938) 38 SR (NSW) 564 R v Saleam (1989) 16 NSWLR 14 Alister v The Queen (1984) 154 CLR 404. Category: Interlocutory applications Parties: Director of Public Prosecutions Joseph Veitch (Offender) Representation: Mr D Jordan (Crown) Mr C Taylor (Offender) Ms S Goodwin (KS) Director of Public Prosecutions CBD Criminal Defence Lawyers (Offender) File Number(s): 2011/00176700 Judgment Introduction 1HIS HONOUR: The learned Director of Public Prosecutions for New South Wales proposes to have the accused, Joshua Veitch, arraigned on three charges set out in the indictment filed yesterday dated 7 May 2012. The three allegations are: firstly, that the accused on 18 May 2011 at Leichhardt in the State of New South Wales did assault KS thereby occasioning actual bodily harm to her. The second count in the indictment alleges that on 18 May 2011 at Leichhardt in the State of New South Wales he did have sexual intercourse with KS without her consent, knowing she not consenting thereto, in circumstances of aggravation; in that he, the said Joshua Veitch, did immediately before the offence intentionally or recklessly inflict actual bodily harm upon her. In the alternative to count 2 the Crown pleads that the accused on 18 May 2011 at Leichhardt in the State of New South Wales did have sexual intercourse with KS, without her consent, knowing she was not consenting thereto. 2Before the empanelment of the jury a number of issues were raised relating to the issue of a subpoena by the legal representatives of the accused which required determination of the Court before the trial could proceed. The "complainant" identified in the indictment and to whom I will refer to as the complainant throughout these reasons, is legally represented in relation to these matters. In relation to the conduct of the proceedings, although within the terms of ss 295 to 306 Criminal Procedure Act ("CPA") 1986 there are particular provisions in relation to "Notice" and the like, no issue is taken in relation to those matters. 3The issues that I was required to consider in a general summary were firstly, an application by the complainant to set aside the subpoena issued on behalf of the accused; secondly, an issue raised by learned counsel for the accused as to whether the material contained within the subpoenaed material was covered by the sexual assault communications privilege as (a) "protected confidence"; thirdly, I had to determine, assuming that I rejected the previous applications, whether I should grant leave under the division for access to be granted to some or all of the documents that have been produced under subpoena in accordance with the requirements of Chapter 6 Pt 5 Div 2 CPA and particularly s 299D. 4The subpoena to produce was issued, as I would understand it, on 30 March 2012, returnable on 19 April 2012 to the Proper Officer, Health Information and Records Service for the Western Sydney Mental Health District, (Deleted Hospital). The documents produced to the Court in MFI 1 and the subject of the various applications are produced by the New South Wales Western Sydney Local Health District. On my examination of them they purport to be in their totality records of the Cumberland Hospital and officers of that hospital, administrative, medical and nursing. The subpoena sought: [Deleted in accordance with non publication order] Setting aside the subpoena 5Counsel for the complainant sought to set aside the subpoena on the general bases that it was a subpoena that served "no legitimate forensic purpose", was unacceptably wide and was in its form and its purpose tantamount to a "fishing expedition" on behalf of the accused, to summarise the points that she raised. I declined yesterday to set aside the subpoena save for restricting the period covered by the subpoena from 1 January 2000 to 31 December 2007. Putting aside all the myriad of reasons for doing that as a matter of law and on the evidence available to me, the significance of the date 1 January 2000 concerns itself with some history given by the complainant, which is in the public domain, of a head injury occurring approximately ten years before the events giving rise to the charges in the indictment, which of course was 18 May 2011. 6I concluded that this subpoena was "no fishing expedition". I should, in summary, explain both for the purposes of justifying that finding and to put in context other aspects of this matter, some of the material upon which I rely. 7I have a statement of the complainant dated 24 May 2011, which, I am informed, sets out the allegations against the accused and sets out the context in which those allegations arise. As I understand the statement, and I stand to be corrected, the particular allegations giving rise to the charges may be found between paras 13 and 20 of the statement. There may be some material in adjoining paragraphs which is also directly relevant to the events of 18 May, but essentially the allegations are contained in those paragraphs. 8In the context of providing information about her background and in the context of explaining the association with the accused who was known to her and with whom she had had a relationship over some period of time before the relevant events, the complainant volunteered to the police at para 5: [Deleted in accordance with non publication order] 9In the document under the heading "Patient Medical History" (Exhibit D) relating to the complainant which I understand is produced from the Crown brief, the patient medical history provided on about 19 May 2011 refers to the alleged assault brought against the accused and references to a sexual assault. It also states this: [Deleted in accordance with non publication order] 10A urine sample apparently was taken from the complainant in relation to the police investigation of this matter. Exhibit G, a certificate of analysis, shows screening tests provided no detected presence of amphetamines, opiates, cannabinoids, methadone, cocaine or barbiturates, but found detected benzodiazepines. It specifically identifies Nordiazepam, Oxazepam and Temazepam as detected. Two other medications, Doxylamine and Venlafaxine were also detected. The Crown has volunteered from the Bar table that one of those medications is an antihistamine, the other is an antidepressant. I am also informed from the Bar table so far as it goes that the benzodiazepines that have been detected are in effect a variance of the same type of medication. 11The complainant in her statement to the police informed the police, particularly at para 21, that after the events that give rise to the allegations with which I am concerned, she contacted a "close friend" of hers called DF. She said that she went to the Leichhardt Medical Centre and saw a Dr AG with a person called DP and gave some details of the medical treatment she received and her understanding of the results of that medical treatment. 12As a consequence no doubt of the information volunteered by the complainant, the police interviewed DF and he gave a statement on 11 June 2011. 13He said at para 4 of the statement: [Deleted in accordance with non publication order] 14Later on in his statement he gives details of representations he says were made to her by the complainant that may in the criminal trial be available for a hearsay evidence purpose, pursuant to s 66 Evidence Act 1995, setting out details of the allegations the complainant made about the conduct of the accused. The complainant, in the course of explaining what happened, told Mr F that she was "extremely scared and frightened". Mr F in his statement had volunteered, "(When KS is in that state she just shuts down)". 15Mr P was a person who came to know the complainant as a friend of the accused, as I understand his statement. He knew the accused approximately two years before the relevant events, having met the accused when he was participating in a drug rehabilitation program. According to his statement, he first met the complainant in February 2011 through the accused, in circumstances where he understood the complainant was the accused's girlfriend at that time. He said in his statement, at para 6, that he often talked with the complainant and stated: [Deleted in accordance with non publication order] 16There was other information, of course, within the statement, including what one might have thought was the essential purpose of obtaining the statement, that is, the details of representations that Mr P claims were made to him by the complainant shortly after the events giving rise to the charges. 17I should point out in passing, as I was proposing to do when I referred to the charges in the indictment, that as the matter unfolded, although counsel for the accused was rather coy about volunteering information that might assist me to understand what the issues were in the trial, I understand for the purposes of this decision that issues for determination at the trial will include issues of consent in the general sense. I was not aided by any greater specificity in relation to that matter. Also, matters concerning the circumstances and/or manner in which the complainant was injured, if injured at all, by the accused will be raised. 18In the course of the submissions that were put in relation to the issue of setting aside the subpoena, I was not assisted by any particular authorities. There was little discussion on legal issues in relation to this matter, beyond referring to time honoured phrases that have found their way through the authorities. I have had regard overnight to seminal authorities such as the Commissioner for Railways v Small (1938) 38 SR (NSW) 564, particularly at pp 573 to 575, R v Saleam (1989) 16 NSWLR 14, particularly at pp 16 to 18, and to a limited extent, bearing in mind it was concerned in its terms with important issues of public interest immunity and the like, Alister v The Queen (1984) 154 CLR 404. 19In the context of the material in the public domain and the issues arising, as I understand them, given particularly information volunteered by the complainant and contemporary records of medical history provided by the complainant, and, of course, noting representations the complainant had made to third parties, there can be no doubt that, for the purposes of the issue of the subpoena, it was "on the cards" that material that potentially was relevant to the proceedings, or would be relevant to proceedings, particularly in relation to the medical condition or mental state of the complainant, would arise from the subpoenaed material. 20The records of the (Deleted) Hospital, subpoenaed by the accused, could and would, in their terms, relate to the capacity of the complainant for rational or irrational conduct at particular times, her capacity in certain circumstances to be deluded or to hallucinate, and also to provide information about medications used by the complainant and their reaction upon her, amongst other salient matters. I do not think there is a need, in the context of the way the matter was argued before me, to dilate upon the reasoning of Hunt J, for the Court of Criminal Appeal in Saleam, but I particularly note pp 17A and 17G through to 18D and 18F and G. There are some other remarks at p 19 of that judgment that are apposite to the consideration that I have taken of the matter. In any event, it was clear to my mind that the application to set aside the subpoena should fail. Protected confidence or not? 21The next issue that arose was an application to exclude consideration of the terms of Chapter 6 Pt 5, Div 2 of the CPA. This Division contains ss 296 to 306. The basis of the application was that the material produced under subpoena could not be regarded as a "protected confidence". I am mindful, for the purposes of this application, the difficulties that counsel had, both for the complainant and the accused, and to some extent the Crown, although the Crown has really been a bystander to relevant events, given the lack of access to the material. On the other hand, of course the complainant, as I would have understood it, would have been entitled to write an authority to have the material provided to her, or to her legal representatives. 22In summary, the argument put to the Court was that the information anticipated within the subpoenaed material was not a "protected confidence", having regard to the character of the condition that was treated, the treatment that was expected to be given, the period of time over which the relevant treatment would have been provided, that is, up until 2007, and the fact, as a contextual matter, that the material sought was in relation to the medical conditions of the complainant absent claims of sexual assault. With regard to the issue of what is a protected confidence under the CPA, the interpretation provision refers to definitions for the principal protected confider, who in this case is the complainant, the relevant definition of sexual assault, which obviously applies in this particular matter, and the character of a document recording a protected confidence. 23Section 296 provides - "(1) In this Division: "protected confidence" means a counselling communication that is made by, to or about a victim or alleged victim of a sexual assault offence. (2) A counselling communication is a protected confidence for the purposes of this Division even if it: (a) was made before the acts constituting the relevant sexual assault offence occurred or are alleged to have occurred, or (b) was not made in connection with a sexual assault offence or alleged sexual assault offence or any condition arising from a sexual assault offence or alleged sexual assault offence. (3) For the purposes of this section, a communication may be made in confidence even if it is made in the presence of a third party if the third party is present to facilitate communication or to otherwise further the counselling process. (4) In this section: "counselling communication" means a communication: (a) made in confidence by a person (the "counselled person") to another person (the "counsellor") who is counselling the person in relation to any harm the person may have suffered, or (b) made in confidence to or about the counselled person by the counsellor in the course of that counselling, or (c) made in confidence about the counselled person by a counsellor or a parent, carer or other supportive person who is present to facilitate communication between the counselled person and the counsellor or to otherwise further the counselling process, or (d) made in confidence by or to the counsellor, by or to another counsellor or by or to a person who is counselling, or has at any time counselled, the person. (5) For the purposes of this section, a person "counsels" another person if: (a) the person has undertaken training or study or has experience that is relevant to the process of counselling persons who have suffered harm, and (b) the person: (i) listens to and gives verbal or other support or encouragement to the other person, or (ii) advises, gives therapy to or treats the other person, whether or not for fee or reward". 24It is also worth noting s 298 of the Act, which states that except with the leave of the Court a person cannot compel, whether by subpoena or any other procedure, any other person to produce a document recording a protected confidence in connection with any criminal proceedings and of course, leave is required to produce such a document, to provide access, and in due course, if relevant to the issues in the trial, permit evidence to be adduced which may disclose such a protected confidence. In relation to this matter it goes without saying, as s 299A makes clear, that the complainant is a party to these applications and may protect her interests to prevent the production of documents or access to documents as the case may be. 25I also note the terms of s 299B, which is, according to the publishers of the Criminal Procedure Act 1986 in the "Butterworth's Practice", appears under the heading, "Determining if there is a protected confidence". It notes that the Court may consider the relevant document or evidence that is claimed to be the subject of the Act, and particularly a claim that it is a protected confidence. 26It states: "A Court must not make available or disclose to a party, other than a protected confider, any document or evidence to which this section applies (or the contents of any such document) unless: (a) the Court determines that the document does not record a protected confidence or that the evidence would not disclose a protected confidence; or (b) a party has been given leave under this division in relation to the document or evidence and making available or disclosing the document or evidence is consistent with that leave." 27Section 299B(4) states that: "A Court may make any orders if it thinks fit to facilitate its consideration of a document or evidence under this section." 28I did not provide the documents to the parties for consideration of the issue of whether in fact there was a protected confidence or confidences contained within the documents subpoenaed. 29As I indicated yesterday, having regard to the subpoenaed material, despite the fact that some documents would appear to be of a purely administrative matter and may, prima facie, not be a "protected confidence" (serving the purpose of delineating relevant medical and nursing notes, serving, in other words, a filing or administrative purpose or providing an administrative context for the documents which contained a protected confidence) the subpoenaed documents were relevantly covered by Pt 5, Div 2. 30In relation to the documents that are produced, I note that all the records were records made, as I understand the dates of the documents, at least five and a half to six years or more, before the acts giving rise to the charges to proffer in the indictment. All the records that were produced under subpoena were not made in connection with the particular sexual assault matters and/or are directly related to the charges with which I am concerned. The documents produced, however, included communications that were made in confidence by the "counselled person"; to wit, the complainant (as defined) to a "counsellor". 31I am satisfied that each of the documents were made in confidence by a counsellor or recorded information provided by the counselled person to the counsellor in confidence. I am satisfied that all the relevant documents would otherwise have satisfied the terms of s 296(4). The terms of the entries reflect records made by a person who has undertaken, on the face of the material, training, study or experience; and it is clear from the recording that the records relate to information that arose from a person, so qualified, listening to and giving support or encouragement to the counselled person or advising or treating her. These are the matters of which I must be satisfied, under s 296, to determine that the material is a protected confidence. 32In light of these findings there is no need to analyse the construction of s 296 any further. It might be said that the terms of the section are very wide and go beyond what might, in literal way, be thought to be "sexual assault counselling notes or confidences". However the terms of the provision are to be applied, giving the words their ordinary meaning in the legislative context in which they appear. The submissions of counsel for the accused are devoid of any reference to authority to support particular interpretations advanced and leave me to no alternative other than to consider the provision as encompassing the material contained within the subpoenaed documents, bearing in mind the context earlier referred to of the legitimate forensic purpose and the terms of s 299D dealing with the separate issue of the circumstances in which leave may be granted to gain access and/or adduce evidence of the contents of the documents. Consideration of a grant of leave pursuant to s 299D 33This leaves, then, consideration of the terms of s 299D of the Act, in the context of the other provisions which inform consideration of it. In that regard, in the course of discussion I note the matters raised by learned counsel for the complainant in relation to ss 302 and 306. I am satisfied, in the circumstances of the matter, to rely upon the outcome of the discussion I had with learned counsel and the approach she took to those provisions in light of our discussions settling those issues. In any event, they do not require any further determination by me at this time given that discussion yesterday. 34s 299D CPA provides: "(1) The court cannot grant an application for leave under this Division unless the court is satisfied that: (a) the document or evidence will, either by itself or having regard to other documents or evidence produced or adduced or to be produced or adduced by the party seeking to produce or adduce the document or evidence, have substantial probative value, and (b) other documents or evidence concerning the matters to which the protected confidence relates are not available, and (c) the public interest in preserving the confidentiality of protected confidence and protecting the principal protected confider from harm is substantially outweighed by the public interest in admitting into evidence information or the contents of a document of substantial probative value. (2) Without limiting the matters that the court may take into account for the purposes of determining the public interest in preserving the confidentiality of protected confidences and protecting the principal protected confider from harm, the court must take into account the following: (a) the need to encourage victims of sexual offences to seek counselling, (b) that the effectiveness of counselling is likely to be dependent on the maintenance of the confidentiality of the counselling relationship, (c) the public interest in ensuring that victims of sexual offences receive effective counselling, (d) that the disclosure of the protected confidence is likely to damage or undermine the relationship between the counsellor and the counselled person, (e) whether disclosure of the protected confidence is sought on the basis of a discriminatory belief or bias, (f) that the adducing of the evidence is likely to infringe a reasonable expectation of privacy. (3) For the purposes of determining an application for leave under this Division, the court may permit a confidential statement to be made to it by or on behalf of the principal protected confider by affidavit specifying the harm the confider is likely to suffer if the application for leave is granted. (4) A court must not disclose or make available to a party (other than the principal protected confider) any confidential statement made to the court under this section by or on behalf of the principal protected confider. (5) The court must state its reasons for granting or refusing to grant an application for leave under this Division. (6) If there is a jury, the court is to hear and determine any application for leave under this Division in the absence of the jury." 35Consideration of this section requires consideration of all the relevant evidence produced including of course the contents of the subpoenaed material, exhibits E and F, the confidential affidavits filed in relation to this matter and permitted so to be filed without crossexamination pursuant to the terms of s 299D(3) and of course s 299(4) of the Act which prevents disclosure of the material to any party other than of course the party swearing the affidavits. Other material that is relevant to a consideration of s 299D in this matter, of course, includes the statement of the complainant, the medical records that have been tendered from the Crown brief, and some of the other material that I have earlier referred to. 36To consider the issue of whether the leave sought for access be granted in the context of the test to be applied under 299D it is appropriate, perhaps, at this point to summarise the submissions that were made by the accused and the complainant's learned counsels. Firstly, on behalf of the accused it was submitted that the material contained within the subpoenaed material that would have substantial probative value, and would in submission satisfy the requirements in order to grant leave, would include material that focussed upon the history and/or diagnoses of the mental and mental states of the complainant, particularly material relating to mental health and mental states arising from matters such as: (1)the breakdown of relationships; (2)the effects of medication; (3)the symptomology of disorders already disclosed in the material, such as bipolar disorder and borderline personality disorder. 37To summarise what was put on behalf of the accused: it was submitted that material reflecting upon the presence of delusions, hallucinations, proclivity for violence, inappropriate behaviour, would be material relevantly of substantive probative value. It was submitted that the use, abuse, and effects of a range of medications identified in the submissions of the accused would be of substantial probative value in the context of what was already known to be the medication either present in the complainant's system if could use that expression in the general sense from the urine test and admitted to or revealed by the complainant when she was medically examined after the alleged sexual assaults. 38It was submitted that medical histories and diagnoses of the effects of those medications and other related matters were capable of reflecting upon the behaviour of the complainant, which was inconsistent with the guilt of the accused as alleged by the Crown, based upon the contents of the complainant's statement; or which, alternatively, may point to the "innocence" of the accused. It is submitted on behalf of the accused, in the context of that rubric, that what is required to permit access to the documents under the legislation particularly s 299D(1) of the Act can be made out. 39In the course of submissions counsel for the accused made reference to the seriousness of the charges brought against the accused as a relevant factor to the balancing test if I might describe it as that set out in s 299D(1)(c) of the Act. This is a matter not specifically adverted to in the legislation. This situation might be compared with s 126B, Evidence Act 1995, to which I was referred by learned counsel for the accused. Whilst I have the greatest respect for the learned author, Mr Odgers SC, the bottom line is that what I was referred to in his helpful textbook, reflects what that provision expressly states concerning considerations relevant to the determination of matters under that section. That having been said, of course, it might be fairly said that the character of the allegation or its "seriousness" is implicitly to be considered by reference to the use of the "public interest" test in the balancing exercise, particularly militating in favour of a grant of leave pursuant to s 299D(1)(c) if appropriate. It has not been an important matter here. 40I note in the material sought to gain access to, applying the test of relevance as required under s 55 Evidence Act 1995, that there is obviously a great public interest in an accused having access to relevant material which would provide the basis for admissible evidence that could be considered in determining whether there was a reasonable doubt as to his guilt of a serious crime subject of course to considering the countervailing public interest reflected in the provision in protecting the confidentiality of protected confidences. Learned counsel for the accused, however, held up the "standard nonparole period" for at least one of the offences as some sort of totem pole for consideration under this section. In my view the standard nonparole period is completely irrelevant to this task. 41The complainant's submission centred upon, in this aspect of the proceedings, the material contained within the affidavits, exhibit E and exhibit F. The second affidavit was one, as I understand it, sworn yesterday. The first affidavit was available for her Honour Judge Flannery SC, who entertained this application to a considerable extent last week without reaching a decision, transferring the matter to the ultimate trial judge on the application of the parties. 42It was conceded in the submissions of learned counsel for the complainant that the second affidavit in its terms adds little to the substance of the matters relied upon as militating in favour of a refusal of leave. By reference particularly to paras 8 and 12 of exhibit E, it was essentially contended, to summarise learned counsel's submissions and hoping not to do any disservice to them, that the relevant harm upon the complainant in the context of the matters to be considered pursuant to s 299D would be: (1)The effect of disclosure upon current treatment; (2)The effect upon the complainant in obtaining future treatment for her conditions; (3)The effect on the complainant of giving evidence. 43A reference was made to a particular paragraph in the affidavit sustaining that last matter. The claim of the complainant, with respect, is "impenetrable", but ultimately of little substantial probative value in the context of all the issues that I have had to consider in relation to this matter. 44I also note the general fears of the complainant which permeate both affidavits and were referred to in submission. Much of the material in the affidavits reflecting upon general fears, or specific fears, may be seen to be material reflecting concerns about giving evidence that might reasonably be seen as common in many cases involving alleged acts of violence including sexual assault, in circumstances where a complainant is required to give evidence of what must be highly traumatic events. 45On the other hand, the specific issue raised in relation to the subpoenaed material, that is material relating to her medical conditions, her mental health and medications she received and related issues, are matters that were volunteered by the complainant to the police in her original statement and which, on the material available to me, had been discussed freely by her, admittedly in private and not in a Court, with acquaintances such as Mr F and Mr P, apparently a friend of the accused. As I understand it, laying sub silento in the matter, the matters that arise out of the subpoenaed material are matters that have been discussed by the complainant with the accused. 46I have already pointed out that Mr P's knowledge of the complainant, his friendship with her, emanates from his much greater, longer relationship with the accused. 47To get to the specifics, however, of the material that I have examined, a number of the matters adverted to in the affidavit evidence of the complainant, and reflected in the submissions, in reality fall away. There is nothing in the hospital notes relating to any counselling in the sense reflected in the legislation by Dr S after 2005. In fact, although the notes are somewhat illegible, Dr S's notes themselves are very distinctive in their handwriting and are perhaps the most legible notes of the lot, apart from some nursing notes which I am not permitting access to and cover a period from 2002 to 2005. In the context of the material that is in the public domain, it might be said as a general comment that his records and other records are entirely uncontroversial. 48The records that I will grant leave for access to be granted to the accused to examine have substantial probative value reflecting histories given by the complainant or diagnoses of the complainant sometimes in summarised form, although, largely not in the form of what could be called "clinical notes" in the narrow sense. I appreciate the notes that have been produced which run to 2005 and not beyond have some antiquity and it might be said they may diminish in probative value with greater age. However, in the context of the statement of the complainant and the medical history given by her in May 2011, the material to which I will grant leave for access provides a historical explanation of contemporary conditions to the events giving rise to the charges. 49Particularly by reference to the matters adverted to in s 299D(2) and noting of course the matters set out in subparas (a) to (f) are an inclusive list, the provision commencing with the words "without limiting the matters the Court may take into account" for the purposes of determining the public interest in preserving the confidentiality of protected confidences, I note firstly, that none of the relevant "counselling notes" relate to any alleged sexual assault and certainly, by definition, to these specific allegations. Secondly, they are all historical records of medical treatment for a range of psychiatric and, for want of a better word, psychological conditions. 50As to the important issue of the reasonable expectation of privacy reflected in s 299D(2)(f) of the Act, I note that whilst this would be reasonably anticipated by the complainant, or any patient, it does not of itself, or in conjunction with the other matters to be taken into account, prevent a grant of leave noting the test in s 299D(1) and the legislative purpose of these provisions. 51In relation to this issue of privacy I hasten to say, in conjunction with the concerns raised by the complainant in some of her affidavit evidence, I do not propose to permit access to all of the material that is produced. A number of reasons exist for this. (1)There is a need for editing of the material which leave will be granted for access to be given to the accused's legal representative, to delete what within the material is clearly irrelevant or material of no substantive value; (2)There are notes such as nursing notes, pathology results and pathology testing that appears on its face and in its terms either not to be of substantive probative value or not otherwise of being capable of satisfying the balancing tests that are required under s 299D(1); (3)There is some material of a purely private nature that could not possibly be of any interest to any reasonable party concerned with these proceedings. This includes, as I foreshadowed, some matters of sexual history that in my view that could not possibly be admissible pursuant to s 293 CPA, particularly as some of them relate to events occurring seven, eight, nine, ten years before the relevant events giving rise to the charge; (4)There is a great deal of repetition in the material and to that extent where I have felt that there is just pure repetition I have determined there is no need to grant leave for access to the accused of some of the material. Conclusion 52Thus, for these reasons having had regard to all of the submissions and all of the relevant evidence that has been adduced and noting the terms of s 299D, I am satisfied that the material that I will grant leave for access to be given to the accused's legal representatives does have substantial probative value, that other documents relating to the matters to which the protected confidence relates are not available and that the public interest preserving the confidentiality of the protected confidences and protecting the principal protected confider from harm is substantially outweighed by the public interest in permitting access to the document or admitting into evidence information or the contents of the document in particular circumstances and is of substantial probative value (s 299D(1)(c)). ********** 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. Decision last updated: 05 October 2012