R v Firebrace (No 3) [2014] NSWDC 276

District Court New South Wales

Medium Neutral Citation: R v Firebrace (No 3) [2014] NSWDC 276 Decision date: 12 August 2014 Jurisdiction: Criminal Before: Cogswell SC DCJ Decision: (1) Documents comprising MFI 17 held to contain protected confidences. (2) Balance of disputed documents held not to contain protected confidences. (4) Retrospective leave granted to issue subpoenas. Catchwords: CRIMINAL LAW - sexual assault - evidence - subpoenas - communications privilege - access to documents - purpose of the legislation - substantial probative value - leave; WORDS AND PHRASES - "protected confidences" - "counsels" - "treats" - "therapy" Legislation Cited: Criminal Procedure Act 1986 (NSW), ss 296, 299D Mental Health Act 2007 (NSW) Cases Cited: KS v Veitch (No 2) [2012] NSWCCA 266; 84 NSWLR 172; 229 A Crim R 46 NAR v PPC1 [2013] NSWCCA 25; 224 A Crim R 535 R v Markarian [2012] NSWDC 197 R v Russell [2013] NSWDC 129 Texts Cited: Macquarie Dictionary (6th ed 2013, Macquarie Dictionary Publishers) New South Wales, Parliamentary Debates, Legislative Assembly, 21 March 2002, 976 (Robert Debus, Attorney General) Category: Procedural and other rulings Parties: Regina (Crown) Wesley Firebrace (accused) Representation: Counsel: K Stares (accused) Solicitors: M Knowles (Director of Public Prosecutions) A Harris (complainant) File Number(s): 2013/00074102

Judgment 1. I presided over the trial of Wesley Firebrace at Parramatta recently. Wesley Firebrace's legal representatives issued subpoenas to Campbelltown Hospital and to the Campbelltown Mental Health Unit. The subpoenas required production of documents connected with the complainant in the proceedings. 2. Mr Firebrace had been accused of raping the complainant. I should immediately add that yesterday the jury found him not guilty of that charge and I acquitted Mr Firebrace. 3. Because the proceedings were sexual assault proceedings, the issue of the subpoenas and the production of documents raised issues of sexual assault communications privilege which is dealt with in the Criminal Procedure Act 1986 (NSW). 4. During the course of the proceedings, specifically on 31 July, 1 August and 4 August 2014, I made rulings concerning the production of some of the documents which had been delivered to the Court in compliance with the subpoenas. In fact the subpoenas, according to the Criminal Procedure Act, ought not to have been issued by this Court without leave. I do not think leave was granted. It seems to be common ground that I can, and should in this case, grant that leave retrospectively and I do so. 5. The real question concerned whether the documents should be made available to defence counsel who was representing Mr Firebrace. This was a controversial issue. 6. The complainant was represented in this aspect of the proceedings by Mr A Harris who assisted me in determining the matters and relied upon submissions prepared by Mr George Breton. Counsel for Mr Firebrace was Ms K Stares who also filed written submissions and relied upon those. 7. At this point it is relevant to observe that defence counsel in these kinds of applications do not yet have access to the documents. They may have a broad idea of the kinds of documents which may exist but they cannot address submissions to the individual documents because they do not have access to them. Accordingly the judge needs to determine the issue based upon the submissions made on behalf of the complainant who has access to the documents and broad-based submissions made on behalf of the accused, who does not have access to the documents. 8. Ms M Knowles prosecuted the proceedings against Mr Firebrace on behalf of the Director of Public Prosecutions and she essentially had a watching brief so far as this aspect was concerned. 9. I have been assisted, as I have said, by the submissions both of Mr Harris and Ms Stares. In addition to those, I have read and considered the judgments of the Court of Criminal Appeal in KS v Veitch (No 2) [2012] NSWCCA 266; 84 NSWLR 172; 229 A Crim R 46, NAR v PPC1 [2013] NSWCCA 25; 224 A Crim R 535, R v Markarian [2012] NSWDC 197 (a judgment of his Honour Judge Berman SC) and R v Russell [2013] NSWDC 129 (a judgment of his Honour Judge Marien SC). 10. I do not propose to recite the legislative scheme in detail, nor to refer to excerpts from the authorities. The purpose of these remarks is to provide my reasons for granting or refusing to grant the application for leave to access documents. I am obliged to do that in accordance with s 299D(5) of the Criminal Procedure Act. 11. I have been assisted in particular by the judgments of Judge Berman SC and Judge Marien SC each of whom was determining specific applications. Their Honours made very helpful observations about the applicability of these provisions in practice. 12. I wish to express an opinion about a particular aspect of the legislation which was also touched upon by their Honours. The legislation creates what it calls "protected confidences". A protected confidence "means a counselling communication that is made by, to or about a victim or alleged victim of a sexual assault offence" (s 296(1) of the Act). A counselling communication is further explained by subs 4 of that section. 13. The specific point which I wish to make some observations about is the meaning of the word "counsels". Section 296(5) of the Act says - "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: 1. listens to and gives verbal or other support or encouragement to the other person, or 2. advises, gives therapy to or treats the other person, whether or not for fee or reward." 1. In introducing the Second Reading of the Criminal Procedure Amendment (Sexual Assault Communications Privilege) Bill in the Legislative Assembly on 21 March 2002, the Attorney General said - "The principal purpose of this bill is, therefore, to ensure that the sexual assault communications privilege is capable of protecting confidential communications made in connection with counselling provided by counsellors who lack formal training or qualifications in the diagnosis of psychiatric and/or psychological conditions and which takes the form of listening to the thoughts and feelings of the alleged sexual assault victim and providing verbal or other support, rather than providing expert advice." 1. Returning to the legislation itself, the definition of "counsels" in s 296(5) is quite wide. Nevertheless I do not regard it as inappropriate to resort to a dictionary definition of the verb "counsel". This is because I want to consider the meanings of the words "therapy" and "treats" used in the definition. The Macquarie Dictionary (6th ed 2013, Macquarie Dictionary Publishers) defines the verb to "counsel" as "to give counsel to; advise" and "to give counsel or advice." The noun "counsel" is relevantly defined as "advice; opinion or instruction given in directing the judgement or conduct of another." I think this is relevant in approaching the definition of the meaning of "counsels" in subs (5). It is clear that the provision made in subs (5)(b)(i) is consistent with the dictionary meaning of "counsels". I repeat it: the person "listens to and gives verbal or other support or encouragement to the other person". 2. What concerned his Honour Judge Berman SC was the breadth of the meaning of "counselling". I can understand his Honour's concern because s 296(5)(b) goes on to provide an alternative to the meaning of listening and giving verbal support or other support or encouragement to the other person; that alternative is that the person "advises, gives therapy to or treats the other person." 3. The word "advises" is clearly consistent with the dictionary meaning of "counsels". 4. The word "therapy" can have a broad meaning which the same dictionary defines as "the treatment of disease, disorder, defect, etc., as by some remedial or curative process". An alternative definition is "psychotherapy" and it gives an example of a phrase to "be in therapy" as meaning "to be undergoing treatment by a psychotherapist." 5. It is difficult to see any such shade of meaning for the word "treats". To my mind however, given the purpose of the legislation and the selection of the word "counsels" and its definition in s 296(5)(b)(i) - which is almost in all respects consistent with the dictionary definition of counsels - the word "treats" must be read in that context so that the treatment envisaged by that word would not include, to use his Honour Judge Berman SC's example, the application of a bandage by a triage nurse in casualty. It means, in my opinion, treatment of the kind given by a person who is counselling another person. The word "therapy" itself is defined by reference to treatment. In my opinion, the word "treats" in the context in which it is used in this legislation means that the counselling person treats the other person in a way that a counsellor in the customary sense, for example a psychologist or a psychiatrist, would treat a patient. An obvious example would be the prescription of medication or the provision of referrals. In my opinion, the word "treats" must be given a meaning in accordance with its context. That, in my opinion, also accords with the purpose of the enactment. 6. Having made those observations, I turn now to specific rulings. Strictly speaking, I am not obliged to give reasons for most of these matters because I formed the opinion that they were not protected confidences. MFI 8, MFI 12 and MFI 13 are all documents produced under the Mental Health Act 2007. MFI 8 is a document completed by a medical practitioner. It is clear, in my opinion, that the medical practitioner's purpose in completing the document is to provide an opinion, as the form itself states, regarding the mental state of a detained person. It is clear, in my opinion, that the author of that document was not counselling that person in any relevant sense. Those observations apply to MFI 8 and MFI 13. The documents in MFI 12 comprise a series of documents completed by police officers, once again under the Mental Health Act. The purpose of the document is for the police officer to request an assessment of a person who may be mentally ill or mentally disturbed. The officer makes observations about the person concerned and hands them over to medical staff. It is clear in my opinion that none of the documents in MFI 12 contains a protected confidence because the authors do not counsel any person. 7. The MFI 15 documents comprise a bundle generally described as "Ambulance Electronic Medical Record" I respectfully agree with Judge Marien SC in Russell where his Honour said at [32] - "it cannot be said that a communication made to an ambulance officer is a communication made to another person who is counselling the person in relation to any harm the person may have suffered. It is not the commonly understood role of ambulance officers to counsel persons." I would require in a case such as this some evidence that the ambulance officers have "undertaken training or study" or have "experience that is relevant to the process of counselling persons who have suffered harm". I expect it is likely that they have, but I would require some evidence of that. In addition, and in agreement with his Honour Judge Marien SC, I think it unlikely that an ambulance officer could be said to counsel their patient in the way which I have interpreted that word earlier in this judgment. Accordingly I did not regard the documents in MFI 15 as containing protected confidences. 1. The documents in MFI 14 are all documents which are self-described as "mental health assessment". They do record a history from the patient but it is obvious, in my opinion, that the role of the person to whom the communication is made is not to counsel the patient but to assess the patient. Therefore I do not regard any of the documents contained in MFI 14 as counselling communications and therefore not protected confidences. 2. I expressed the opinion that the documents in MFI 17 were protected confidences. I did not grant access to those documents. I took into account s 299D(1) which provides that I "cannot grant an application for leave" unless I am satisfied, amongst other things, that "other documents or evidence concerning the matters to which the protected confidence relates are not available". I formed the opinion that other documents which had been produced under the subpoenas covered, in substance, the matters raised in MFI 17. For that reason I refused leave for access to those documents. 3. Finally, MFI 11 comprised a series of reports. I expressed the opinion that they were not protected confidences. Looking more closely at those documents I am not sure that I was correct in that opinion. I think that some of the documents which have a heading "Nursing handover Mental Health" may well be protected confidences. I would be prepared to find that a mental health nurse is a person who has the relevant study or experience. Some other documents in MFI 11 comprise what appear to be emergency department triage notes. To my mind those documents are consistent with being an assessment or a report about the physical condition of the person in the emergency department. I am not convinced that the emergency nurse was necessarily counselling the patient in a relevant respect. Nevertheless I did grant access to those documents, rightly or wrongly. 4. I granted access, from recollection, to another bundle of documents which I also marked for identification. They were produced, I think, by the Campbelltown Hospital. Ms Stares made extensive use of them in her cross-examination and tendered a redacted version of them. Those documents raised issues concerning the ingestion of alcohol and cannabis by the complainant. They also referred to previous behaviour by the complainant. I should say that Mr Firebrace defended the allegation, acknowledging that he had sex with her, but claiming that it was by consent. A cogent aspect of the prosecution case was that the complainant, after having sex with Mr Firebrace, cut her own arms and phoned triple-0 to report the incident to the police. 5. The documents to which I gave access to Ms Stares were, I expect, protected confidences. But I formed the view that their probative value was substantial. That view was vindicated by the use which Ms Stares made of them relevantly and effectively in her case. There were no other documents which disclosed such material. I considered the public interest in preserving the confidentiality of such confidences and the protected confider from harm. But I formed the view that that public interest was substantially outweighed by the public interest in admitting into evidence the contents of the documents. I took into account the important factors regarding the public interest in preserving the confidentiality of protected confidences and protecting the person from harm, which are listed in subs 299D(2). But I formed the view that the interests of Mr Firebrace in resisting a claim of sexual assault substantially outweighed those public interests. He was facing a charge of aggravated sexual assault. That carried a maximum of 20 years' imprisonment. As I said, the prosecution case contained cogent evidence about the behaviour of the complainant immediately after the sexual encounter. However the documents disclosed that her behaviour was not an isolated incident. I should also add that Mr Firebrace and the complainant had been drinking on that day and the documents disclosed behaviour associated on previous occasions with alcohol and cannabis use. 6. They are the reasons for the rulings which I gave.