Supreme Court New South Wales Medium Neutral Citation: R v Kelsall (No 3) [2015] NSWSC 253 Hearing dates: 2 March 2015 Decision date: 04 March 2015 Jurisdiction: Common Law Before: R A Hulme J Decision: Evidence of protected confidences admissible Catchwords: CRIMINAL LAW – evidence – s 126B Evidence Act - admissibility of statements made to two medical practitioners – where statements amount to protected confidences – where evidence is highly probative – limitations of doctor/patient confidentiality where statements concern harm to others - public interest concerns mitigated – evidence admissible Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW) Evidence Act 1995 (NSW) Cases Cited: R v Leung [2012] NSWSC 1451 Category: Procedural and other rulings Parties: Regina Daniel Jack Kelsall Representation: Counsel: Mr P McGrath SC (Crown) Mr C Watson (Accused) Solicitors: Solicitor for Public Prosecutions Breton Legal Pty Limited File Number(s): 2013/302108 Judgment 1. HIS HONOUR: The accused, Daniel Jack Kelsall, has pleaded not guilty to the two counts on the indictment which allege that on 8 September 2013 at Neutral Bay he indecently assaulted and murdered Morgan Huxley. 2. The Crown case is that after the accused had finished work as a kitchen hand late at night he followed the deceased from the Oaks Hotel at Neutral Bay to the deceased's nearby home in Watson Street. It is alleged that he entered the deceased's apartment and there, in the deceased's bedroom, committed the two offences. The deceased's flat mate was alerted to sounds coming from his bedroom. She went to investigate and found the deceased on the floor covered in blood. The immediate investigation established that he had died from the effects of multiple stab wounds. 3. The issue with which this judgment is concerned is the admissibility of statements made by the accused to two people in the middle of 2012. It is common ground that the statements amount to "protected confidences": Ch 3 Pt 3.10 Div 1A of the Evidence Act 1995 (NSW). A court is empowered to exclude such evidence by s 126B, and must do so if satisfied of the matters in s 126B(3). For the purposes of the section, the court is required to take into account the matters listed in s 126B(4). The protected confidences 1. The statements are set out in exhibit A on the voir dire and they were identified within that exhibit at the places indicated by the Crown Prosecutor (2.3.15 at T4.25 - 4.35). 2. The first statement (to Dr Susan Allman, general practitioner, on or about 15 May 2012) is to the following effect: The accused said he had intrusive thoughts about killing people with a knife on the way home at night. He said there was no real reason for this and he had not thought about the consequences. He took a knife home late one night but he did not meet anyone. 1. The second statement (to Dr Matthew Boulton, psychiatrist, on 6 June 2012) is to the following effect: The accused said he had thought of killing someone for the thrill of it. He had no idea why. The victim would be "a total random" and it would be done with a knife. At the same time he said that he did not want to kill anyone; "absolutely not". This was when the depression he was experiencing was at its worst. That situation has improved since he has been on antidepressant medication. Other Evidence 1. Dr Allman was asked on the voir dire whether the accused had said anything about when he was experiencing the thoughts he had spoken about and she replied: "He said that it was when he was coming home from his job as a chef late at night, and that he took his chef's knife home with him and that he had been thinking about the idea of using it to kill somebody, but that he hadn't met anyone on that particular night." (2.3.15 at T7.35.) 1. Dr Allman said that she informed the accused that what he told her would be confidential except if there was a risk of harm to him or to others (T7.45). She agreed in cross-examination that the accused had not said when he had experienced these thoughts (T10.4). 2. Dr Allman was also asked for her opinion as to whether divulging what the accused had told her in this case might have any adverse bearing on the willingness of others to confide their thoughts with medical practitioners. She said: "I don't think so because I always make it clear that confidentiality is limited if there was suicidality or if there was danger to other members of the community. And that is the exception to confidentiality." (T11.46) (See also her answer at T13.22.) 1. Dr Boulton was asked a similar question. He referred to patients discussing "a lot of very personal and troubling thoughts, thoughts that are often actually quite common in the general population, but never amount to anything". He said that "some of these issues are embarrassing or some … are very personal". He was concerned about the possible affect upon clients and potential clients if there were to be any breach of confidentiality in relation to matters of that type (T23.20). 2. However, Dr Boulton's practice, as part of a standard procedure, sent to the accused some information and forms prior to his first consultation. One was headed "Privacy and Billing Consent Form" and it was signed by the accused with an indication (a tick in a box) that he had read and understood the form. It included: "We do not pass your personal information on to others without your consent, except under the following circumstances: ● If we are concerned about your safety or the safety of others, including children with whom you have contact, we are required by law to do whatever is necessary to ensure the safety of all concerned. This may involve breaking confidentiality as necessary to protect you or other people involved. … ● Sometimes files are subpoenaed by a court of law in which case we are legally obliged to hand over your file notes to the court. The subpoena of files only occurs where the clinical interaction is related to legal proceedings such as claims for compensation, hostile custody disputes, criminal activity, and so on. …" 1. Evidence was also given by Dr Abdul Saad, psychologist. Dr Boulton had referred the accused to Dr Saad in June 2012 and thereafter they engaged in a number of psychological counselling sessions, the last being in September 2013. Dr Saad's statement (in Exhibit A) recorded that there "was no evidence of thoughts of self-harm, attempts to commit self-harm or of homicidal ideations or plans". He also said that his assessment of the accused's "risk status, to both [him]self and others, remained low throughout his entire engagement with myself". He said that the accused had not spoken to him about having an intrusive thought of killing a stranger with a knife, or of taking a knife home with him one night (T27.27). Consideration 1. The first matter to be determined is whether the evidence is relevant: Evidence Act, s 55. 2. The primary fact in issue is whether the accused was the person who stabbed Morgan Huxley to death. I have earlier briefly outlined the factual basis of the Crown's case that he was. The defence case is anticipated to be that the accused went to the deceased's home; he was permitted to enter; he engaged in consensual sexual activity before the deceased fell asleep; and he then left. Some unknown person subsequently killed the deceased. 3. In the light of these competing cases, evidence that the accused had spoken of having a thought, or thoughts, of doing precisely what the Crown alleges he did could, in my view, rationally affect the assessment of the probability of the existence of that primary fact in issue. 4. The matters listed in s 126B(4) that are required to be taken into account do not all point in the same direction. 5. The probative value (s 126B(4)(a)) of the evidence has to be assessed in context. Aside from the evidence of protected confidences, the Crown case relies upon the following: 1. The accused's DNA was found on the deceased's penis. 2. The accused's fingerprint was found on the deceased's bedroom door. 3. CCTV footage establishes that the accused lingered around the vicinity of the Oaks Hotel for about 30 minutes (after having briefly encountered the deceased in a nearby convenience store) and then followed the deceased as he walked away from the hotel. For a time he was jogging, or running, after the deceased. 4. The accused gave some answers in an interview with police on 24 September 2013 that might be considered incapable of belief. 5. The deceased's blood was found on the accused's satchel bag. 1. Items 1 and 2 are neutral, given the nature of the anticipated defence case. Items 3 and 4 raise suspicion. Item 5 could be strongly probative of guilt, but the defence response to this item of evidence remains unknown; in other words, it is possible there will be an explanation advanced that could be regarded as credible. 2. In this context I consider the probative value of the protected confidence evidence to be high. The jury could well accept that it would be nothing short of remarkable that Mr Huxley could be killed by someone else when the accused had spoken the previous year of doing precisely what the Crown alleges. This is particularly so when a significant part of what he spoke of in the past, and what he now accepts occurred, coincides: "he was coming home from his job as a chef late at night" and the killing was carried out by stabbing with a knife. 3. The evidence is important in the proceedings because of its potentially high probative value: s 126B(4)(b). 4. Nothing more needs to be said about the matters in s 126B(4)(c) and (d). 5. In relation to s 126B(4)(e), the likely effect upon the accused, he will suffer harm in a forensic sense but that is not the type of harm I believe the paragraph speaks of. It was contended that he will suffer harm "in the form of a violation of his therapeutic relationship with his mental health practitioners" (written submissions at [6]). However, he does not have any ongoing relationship with either of the doctors. He saw them only the once and that was nearly three years ago. No other potential harm to the accused was suggested. Accordingly, there is no call to consider any means to limit harm that is likely to be caused to him (s 126B(4)(f)). 6. Clearly this is a criminal proceeding and the evidence is sought to be adduced by the prosecutor: s 126B(4)(g). The substance of the protected confidence has not already been disclosed by the accused or anyone else (aside from the confidants to the police, the prosecution, the accused and his lawyers and now the court): s 126B(4)(h). 7. It is the public interest in preserving the confidentiality of protected confidences (s 126B(4)(i)) that I consider to be the most vexing of matters militating in favour of making a direction that they not be adduced in evidence. It is a matter of concern that anything might be done that could dissuade people in the community from consulting medical practitioners, particularly mental health care specialists, and being fully frank with them. 8. This is a matter that was prominent in the reasoning of Price J in excluding the evidence of a clinical nurse specialist in R v Leung [2012] NSWSC 1451. That was a case of manslaughter. It was the Crown case that the accused had killed his partner after an argument. The accused had been hysterical and police summoned the nurse to make an assessment of his risk of self-harm. The history she obtained included that there had been "bad arguments" that day, the previous day and a lot of arguments in the preceding weeks. In excluding the evidence, Price J said in part: "[21] In the present case, Nurse Salmon, the confidant, was acting in a professional capacity and was under an express obligation not to disclose the contents of the interview, save for her assessment of the accused's risk of self-harm. [22] Unlike that of a support person, the relationship between a clinical nurse specialist who is called to a police station to make a mental health assessment and an accused person is a protected relationship under s 126A Evidence Act. Ensuring that a person in custody is not a risk of self-harm is a matter of importance not only to the police force but to our society as a whole. It is fundamental to the reliability of the assessment that accused persons be able to speak freely to the health professional without fear that their conversation might be used in evidence against them. To be balanced against that consideration is the public interest in solving serious crimes such as manslaughter. However, it is unlikely that accused persons in custody would co-operate in a mental health assessment if they understood that the interview was not to be confidential." 1. I accept the evidence of both doctors that they adopted a policy of excluding from doctor/patient confidentiality anything that may bear upon a risk of self-harm or harm to others. The Crown only seeks the disclosure of that part of the account given by the accused to the doctors that is relevant to a question of harm to others. The distinction with R v Leung is that there the evidence in question was of an extraneous matter; the history of arguments with the deceased. It was quite separate from the topic of self-harm about which the nurse was authorised to make a disclosure. In the present case, the evidence in question is of a type that the doctors (and it would seem doctors generally) would consider being outside the scope of what is required to be kept confidential; a matter about which patients are usually informed. 2. I considered it might be appropriate to make an order of the type envisaged by s 126E (hearing the evidence in camera) or a non-publication order under the Court Suppression and Non-publication Orders Act 2010 (NSW) in light of the public interest concerns that I had. However, having regard to what seems to be the general policy of medical, and particularly mental health, practitioners regarding confidentiality, and given that what is sought to be disclosed here is of a nature that would not necessarily attract absolute confidentiality, I have come to the view that there would either be no utility in doing so or that any such utility as it might have was outweighed by open justice principles. Conclusion 1. The evidence of disclosures made to Dr Susan Allman and Dr Matthew Boulton in the passages which the Crown Prosecutor identified in the transcript of 2 March 2015 at page 4 lines 25 to 35 are admissible and I decline to make a direction pursuant to s 126B of the Evidence Act that they not be adduced in the proceedings. ********** 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: 18 March 2015