R v Griffiths[2018] QDCPR 7

DISTRICT COURT OF QUEENSLAND

Introduction

2. [2]
   The defendant, Adam Griffiths, is charged with one count of burglary whilst armed, with violence and one count of armed robbery. By way of general overview, the allegations against him are that on 2 July 2016 he attended the complainant’s address and demanded money from him at knifepoint. The defendant then forced the complainant to drive him to an ATM and to give him his pin number after which the defendant withdrew money from the complainant’s account.

3. [3]
   It was accepted before me that the Crown case depends largely, although not entirely, on the jury accepting the version of the complainant as to what occurred. It was accepted that there was no direct evidence of the alleged offending other than the complainant’s version, although there is circumstantial evidence in the form of CCTV footage, forensic material, ATM records and taxi records which support the prosecution case.

4. [4]
   The matter proceeded to committal hearing with cross-examination before Magistrate Callaghan on 15 March 2017. At the commencement of the cross-examination of the complainant on this day, the police prosecutor tendered a letter from the complainant’s treating psychologist Dr Adrian Ashton on the letterhead CBT Professionals to support a submission that the complainant “may struggle during cross-examination”.

5. [5]
   This letter stated as follows:

This is to confirm that Mr Douglas Keogh is a client under my care.  I have seen Mr Keogh for 2 consultations to date, following 2 consultations prior, with a colleague of mine, Mark Newman (Psychologist).  Mr Keogh presented with symptoms of depression and Posttraumatic Stress, following his life being threatened in a criminal attack in July 2016.  Mr Keogh has had intense suicidal ideation as a result of the impacts of the attack.  Mr Keogh is now struggling to hold down employment, and his brother-in-law does not currently allow his son (Mr Keogh’s nephew and son of his dead sister) to stay with him due to safety concerns at his house due to the attack.  Mr Keogh has committed to treatment to improve coping following this attack, however, has noted the significant impact that this attack has had on his mental health, and subsequent life prospects.  I am currently working with Mr Keogh through a victims of crime program, and with [sic] provide psychological treatment through 2017, at least.

6. [6]
   The defendant was committed to stand trial after the committal hearing and is currently in custody. A number one trial listing has been allocated for the week commencing 21 May 2018.

7. [7]
   On 3 November 2017, the defendant, through his solicitors, issued a subpoena to Dr Ashton of CBT Professionals requiring him to produce to the District Court at Southport by Thursday 9 November 2017 “all records held by you and your organisation in relation to Mr Douglas James Keogh (Date of birth 30 June 1966)”.

8. [8]
   On 7 November 2017, Dr Ashton forwarded the documents identified in the subpoena with an objection to their production on the following bases:

1. The information contained in the documents has no relevance to the matters in dispute in the proceeding and I am concerned that they have been requested as part of a ‘fishing expedition’.  Because the subpoena has not been requested by my client, my concerns lay with the particular information being attempted to be accessed by the defendant’s team, in order to establish a ‘post-hoc’ hypothesis which benefits their client, at the risk of privacy of my client’s personal information which was gathered in confidence.

2. The effect on future treatment caused by the undermining of the relationship of trust between myself and the client could cause long term or irreparable harm to the wellbeing of the client and the therapeutic relationship, possibly not just with me as their treating psychologist but with also psychologists in general.  This is especially important, as my client may ordinarily require treatment in the future.

3. Psychology is a highly skilled profession.  Reference to the information contained in these documents without explanation of the context in which they are written are unlikely to assist the court/tribunal and has the potential to have adverse consequences.

9. [9]
   Dr Ashton also sought an order for his reasonable costs for compliance with the subpoena (above the sum of $154.00 which he had received with its service). The additional amount sought is $738.00 plus GST “plus monies for any required hearing for these objections”.

10. [10]
    This matter came before me for hearing on Thursday 1 February 2018. Mr Whitton instructed by the Legal Aid office appeared for the defendant agitating for the production in accordance with the subpoena. Mr Whitton provided a written outline and made oral submissions. Mr Wallis for the Office of the Director of Public Prosecutions appeared for the Crown to assist the court. Dr Ashton appeared by telephone and maintained his objection making further oral submissions.

11. [11]
    I reserved my decision stating that I would deliver ex-tempore reasons upon a further consideration of the written and oral submissions of the parties.

12. [12]
    Having read and considered the submissions, the relevant authorities and the general overview given to me of the facts of this case, I have reached the view that upon the undertaking of counsel for the defendant that his client will not become privy to any or all of the documents subpoenaed, the interests of justice in this case warrant the Crown and the defendant’s legal representatives having access to inspect the documents on or before Friday 2 March 2018. In my view no copies of any documents ought to be made until further order of the Court.

13. [13]
    These are my reasons.

The relevant legal principles

14. [14]
    Chapter 8 of The Criminal Practice Rules 1999 (Qld) provides for the issuing of subpoenas.  Rule 31 relevantly states:

31 Objecting to inspecting or copying medical, hospital and government records

3. (1)
   This rule applies if, when a person produces a document under rule 30, the person gives to the proper officer of the court a written statement—

1. (a)
   objecting to the document or a stated part of it being inspected or copied; and

2. (b)
   stating the grounds for the objection.

3. (2)
   The proper officer must not, without the court’s leave—

1. (a)
   allow anyone to inspect the document or part; or

2. (b)
   give a copy of the document or part to anyone.

15. [15]
    Rules 33 and 34 relevantly provide:

33 Setting aside or narrowing subpoena

3. (1)
   A person who has been served with a subpoena (the applicant) may apply to the court for an order—

1. (a)
   setting aside the subpoena; or

2. (b)
   if the applicant is required to produce documents to the court under the subpoena—setting aside the subpoena or narrowing its scope, including, for example, by reducing the number of documents to be produced.

3. (2)
   The applicant must serve a copy of the application on the party who served the subpoena.

34 Applying for costs

3. (1)
   This rule applies if a subpoena is set aside or narrowed under rule 33.

3. (2)
   The person who was served with the subpoena (the applicant) may apply to the court for an order that all or part of the applicant’s costs incurred in applying to have the subpoena set aside or narrowed be paid by—

1. (a)
   the party who served the subpoena; or

2. (b)
   if the court finds the conduct of the party’s lawyer in serving the subpoena was oppressive, vexatious or an abuse of process, the party’s lawyer.

16. [16]
    The correct test before access to subpoenaed documents ought to be granted or an order to produce made were uncontroversial before me. That is, the defendant applicant must:

1. (a)
   identify a legitimate forensic purpose for which access is sought; and

2. (b)
   establish that it is “on the cards” that the documents will materially assist his case.^[1]

17. [17]
    In R v Spizzirri [2000] QCA 469 Pincus J held at [24]:

It appears to me to emerge from the authorities that inspection of subpoenaed documents by the defence should be permitted, where that is required for some legitimate forensic purpose, which purpose must be sufficiently disclosed. The purpose may be or include the obtaining of information, in particular for use in cross-examination as to credit. Further, courts should be careful not to deprive the defence of documents which could be of assistance to the accused. [emphasis added]

18. [18]
    Gibbs CJ of the High Court in Alister & Anor v The Queen 154 CLR 404 (which was referred to in Spizzirri), held at 414 that:

Just as in the balancing process the scales must swing in favour of discovery if the documents are necessary to support the defence of an accused person whose liberty is at stake in a criminal trial (see Sankey v. Whitlam (1978) 142 CLR, at pp 42, 62) so, in considering whether to inspect documents for the purpose of deciding whether they should be disclosed, the court must attach special weight to the fact that the documents may support the defence of an accused person in criminal proceedings. Although a mere ‘fishing’ expedition can never be allowed, it may be enough that it appears to be ‘on the cards’ that the documents will materially assist the defence. If, for example, it were known that an important witness for the Crown had given a report on the case to ASIO it would not be right to refuse disclosure simply because there were no grounds for thinking that the report could assist the accused. To refuse discovery only for that reason would leave the accused with a legitimate sense of grievance, since he would not be able to test the evidence of the witness by comparing it with the report, and would be likely to give rise to the reproach that justice had not been seen to be done. [emphasis added]

19. [19]
    In Liristis v Gadelrabb [2009] NSWC 441the New South Wales Supreme Court held that:

It is not fishing to seek documents when there are reasonable grounds that fish of the relevant type are in the pond, or, as it has been expressed in other cases that it is ‘on the cards’ that relevant documents (even if they are relevant only to credit) will be elicited by the subpoena.

Analysis

20. [20]
    Before me the defendant argued that there was a legitimate forensic purpose and it is on the cards that there may be documents which would materially assist his case because the records subpoenaed ‘may’ assist with cross-examination of the complainant as to his credit. It was argued that any version given to Dr Ashton by the complainant could conceivably assist the defence if it were inconsistent with that given in any later evidence. It was also argued that information regarding the complainant’s mental health generally may assist the defence with an attack on credit (although to a limited degree).

21. [21]
    The defendant submits that the complainant’s credibility is in issue because his version is prima facie incredulous. It is difficult for me to form a concluded view about this, other than to accept the summary as contained in the written outline of counsel for the defendant at paragraphs given, as there was nothing tendered before me. The Crown did not argue that the summary contained in the outline was not an accurate reflection of the evidence. In those circumstances, I accept the summary for the purposes of this application. That is, that there are numerous occasions evidenced on the CCTV where the complainant could have safely separated himself from the defendant or sought assistance. Further, that the footage shows the complainant open the door of his car for the defendant before passing him something, most likely his debit card and that the complainant waited patiently in the car before letting the defendant back into his car and driving off. The defence submits that as a consequence of this, it can be said that it is at least on the cards that the material sought will assist the defence at trial.

22. [22]
    By his oral submissions Dr Ashton maintained that:

I still do not believe that my notes contain any clear or insightful information regarding that event, superficially; however, perhaps that is best judged by yourself.  And my other concern is that, because that – I wasn’t taking any particular statements around that issue, but rather, assessing for psychological difficulties, there’s a whole range of other information there that may – that I believe is not relevant to the case and would rather keep private for the sake of my client.  And so if you did decide that you wanted to have those files given for the court, I would request, hopefully, that unnecessary information be blacked out.  I’m not sure if that is a valid request, but that is my concern.

I would also hope that those files are not released to the defendant themselves, as my client has expressed a fear of that person.  So if they are used, to be hopefully just used by the least necessary persons possible.

23. [23]
    A mere fishing expedition can never be allowed but it may be enough that it appears to be on the cards that the documents will materially assist the defence. This applies even if the documents are relevant only to credit. I accept that in this case the subpoenaed records may assist with cross-examination as to credit, and that it is on the cards that they may assist the defence. Whether it is on the cards they will materially assist the defence remains to be seen.

24. [24]
    Having conducted the balancing act referred to in the authorities, I have reached the preliminary view that there are reasonable grounds to satisfy me that there may be documents that would assist in the cross-examination of the complainant as to credit and that they may assist in the defence of the defendant. The interests of justice are finely balanced in this case and in my view warrant some caution and a system of management of the documents for the purpose of deciding whether they finally should be copied and disclosed.

25. [25]
    Accordingly I consider that leave ought to be granted for the defendant’s legal representatives and the Crown to inspect the subpoenaed documents.

Proposed orders

26. [26]
    I will hear the parties about the form of orders which will give practical effect to my decision. I am presently inclined to the view that the appropriate orders are as follows:

1. Upon the undertaking of counsel for the defendant that the defendant will not become privy to any or all of the documents produced by Dr Adrian Ashton under the subpoena issued to him on 3 November 2017, leave of the court is granted to allow the Registrar of the Southport District Court (or a proper officer) to allow the relevant representatives from the Crown and the legal representatives of the defendant to have access to inspect the documents produced, on or before Friday 2 March 2018.

2. No copies of any of the subpoenaed documents are to be made until further order of this court.

3. The parties have liberty to apply on 48 hours’ notice in writing.

Costs

27. [27]
    Dr Ashton has requested further amounts for administrative expenses involving complying with the subpoena. The process of subpoena in criminal proceedings is governed by the Criminal Practice Rules 1999, Chapter 8, Rules 29 to 35.  It is uncontroversial that the conduct money paid to date was done in consultation with Dr Ashton or a member of his administrative staff.  Under Rule 34 of these rules, the costs ordered may only be those incurred in applying to have the subpoena set aside or narrowed.  This would cover matters such as legal expenses.  It does not extend to the additional administrative expenses involved in complying with the subpoena that Dr Ashton now seeks, nor his time spent as an unrepresented person appearing by telephone for the hearing of his objections.  There is in my view no power to make the orders sought by Dr Ashton.^[2]

28. [28]
    In the circumstances, I make no further order as to costs in relation to Dr Ashton and I will hear the parties further in relation to any other costs ordered that are being sought.