Director of Public Prosecutions v Franklin (No 1)

[2023] ACTSC 451

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Franklin (No 1)

Citation

[2023] ACTSC 451

Hearing Date:

30 January 2023

DecisionDate:

30 January 2023

Before:

Baker J

Decision:

I grant the applicant leave under s 79D(2) of the Act to issue the subpoena in the terms indicated in “MFI 1”.

Catchwords:

CRIMINAL LAW – application for disclosure of protected confidences – evidence that complainant had previously made false allegations of sexual assault – evidence of complainant’s mental health and consumption of alcohol at time of previous alleged false complaint – subpoena limited to those matters

Legislation Cited:

Evidence (Miscellaneous Provisions) Act 1991, ss 79D, 79E, 79F

Cases Cited:

R v Chute [2019] ACTSC 197

R v Chute (No 5) [2019] ACTSC 52

Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145

Parties:

ACT Director of Public Prosecutions (ACT DPP)

Patrick Thomas Franklin (Accused)

Representation:

Counsel

Mr D Swan (ACT DPP)

Mr K Ginges ( Accused)

Solicitors

ACT Director of Public Prosecutions (ACT DPP)

Hugo Law Group ( Accused)

File Number:

SCC 214 of 2022

BAKER J:

1. The applicant, Patrick Thomas Franklin, is charged on indictment with four counts of intentionally choking, suffocating or strangling, one count of forcible confinement, and two counts of sexual intercourse without consent. He is also charged with three transferred charges of common assault. Each of these offences are alleged to have been committed on or about 18 May 2022, against the complainant, who was the applicant’s then partner.

1. On 12 September 2022, the applicant issued a subpoena to the ACT Mental Health, Justice Health and Alcohol and Drug Service (“the ACT MHJHADS”) seeking a copy of:

Any records or notes relating to [redacted] whether electronic, handwritten or otherwise, including but not limited to:

a.Documents;

b.Admission and discharge papers;

c.Correspondence;

d.Nursing notes and doctor’s notes;

e.Mental health history;

f.Medication/prescription records;

g.Reports (including medical and third/party reports);

h.Mental health assessments;

i.Counsellor, psychologist and/or psychiatrist notes;

j.Diagnoses and other observations;

k.Any other notes and memoranda

1. Section 79D of the Evidence (Miscellaneous Provisions) Act 1991 (“the Act”) provides that a protected confidence must not be disclosed without the leave of the Court, and that a person cannot be required to produce a document (whether by subpoena or otherwise) that records a protected confidence without the Court’s leave. An application for leave must be made in writing: s 79E of the Act. The term “protected confidence” is defined in s 79A to mean “a counselling communication made by, to or about a person against whom a sexual offence was, or is alleged to have been, committed.”

1. The Court must refuse leave if the Court is not satisfied that the applicant has established a legitimate forensic purpose for seeking the leave: s 79F(1) of the Act. To establish a legitimate forensic purpose, the applicant must identify a legitimate forensic purpose for seeking leave and satisfy the Court that the evidence in relation to which leave is sought would “materially assist the applicant’s case in the proceeding”: s 79F(2) of the Act. See further: R v Chute [2019] ACTSC 197; R v Chute (No 5) [2019] ACTSC 52; Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145.

1. The applicant acknowledges that the material sought in the subpoena that was issued to the ACT MHJHADS encompasses protected confidences within the meaning of the Act, and that the Court’s leave should have been sought before the subpoena was issued and served. However, as a result of an oversight, the applicant did not seek the Court’s leave under the Act prior to issuing and serving the subpoena on the ACT MHJHADS.

1. On 16 September 2022, the respondent alerted the applicant’s legal representative to the requirement for leave.

1. On 19 September 2022, the applicant advised the ACT MHJHADS not to produce the material sought. Despite this, the subpoena material was subsequently produced by ACT MHJHADS.

1. By application filed on 30 September 2022, the applicant seeks the following orders:

1. The Court grants leave under s 79D(3)(a) of the Evidence (Miscellaneous Provisions) Act 1991 for ACT Mental Health, Justice Health and Alcohol Drug Services (ACT MHJHADS) to produce documents which may record protected confidences in accordance with the subpoena filed 12 September 2022;

2. The Court grants leave under s 79D(2) of the Evidence (Miscellaneous Provisions) Act 1991 for any material produced in accordance with the ACT MHJHADS subpoena filed 12 September which may record a protected confidence be disclosed to the Accused; and

3. Any other orders that the Court considers appropriate.

1. The applicant read an affidavit of Ms Priyanka Hana Koci dated 30 September 2022 in support of his application for leave.

10.  The applicant contends that:

(i)       The documents for which leave is sought are mental health records in relation to the complainant;

(ii)      There is evidence that the complainant has, in the past, made false and/or unsubstantiated allegations of physical and sexual violence against the accused which did not result in charges or proceedings;

(iii)     On one occasion in 2018 when a false allegation was made, the complainant was observed to be suffering from a mental health condition or disorder and had consumed alcohol; and

(iv)     The present allegations share some similarities with the previous false complaint, including the consumption of alcohol.

11.  The Director of Public Prosecutions (“the Director”) accepts that there is evidence that supports the applicant’s contention that the complainant has previously made a false allegation of physical and/or sexual violence against him; and that the evidence supports a submission that there is a connection between the false allegation and the complainant’s mental health and alcohol use.

12.  However, the Director contended that the breadth of the subpoena exceeded its legitimate forensic purpose. In particular, the Director noted that the subpoena was not limited to the complainant’s mental health and was not limited in time, and so would include matters from when the complainant was a child. The Director submitted that the Court should limit the terms of the material sought to be produced in line with the legitimate forensic purpose indicated.

13. Mr Ginges, who appeared for the applicant, initially submitted that the Court should make an order granting leave for the ACT MHJHADS to produce the documents so as to “regularise” the production that has already occurred prior to the grant of leave. However, in response to the Director’s submissions regarding the scope of the documents sought under the subpoena, Mr Ginges agreed that it was appropriate to limit the subpoena to documents relating to the complainant’s mental health and alcohol and/or drug use, and to limit the subpoena to the period commencing after the complainant became an adult.

14.  As the scope of the subpoena must be limited to ensure that only documents which have a legitimate forensic purpose are produced, Mr Ginges also agreed that it was appropriate for a new subpoena to be issued and for the Court to grant leave to issue the new subpoena, rather than for leave to be granted in respect of the documents produced under the former (overly broad) subpoena.

15. After a short adjournment, I was provided with a revised subpoena. The draft subpoena, which was marked “MFI 1”, records that the subpoena is “issued pursuant to s 79D of the Evidence (Miscellaneous Provisions) Act 1991 (ACT)”.[1] The documents required to be produced under the subpoena are:

[1]The first draft of the subpoena described the relevant section as s 79G(2) of the Act. The subpoena was amended to describe the section as s 79D(2) of the Act.

1.     Any Documents relating to [redacted] between 1 July 2013 to present relating to or referring to [redacted]’s mental health conditions, complaints, diagnoses or disorders, and to any records relating to [redacted]’s alcohol or drug use.

2.     “Documents” whether made or maintained in hard-copy or electronic format, includes but is not limited to:

a.       Records;

b.       Admission and discharge papers;

c.       Correspondence;

d.       Nursing notes and doctors’ notes;

e.       Mental health history;

f.        Medication/prescription records;

g.       Reports (including medical and third/party reports);

h.       Mental health assessments;

i.        Counsellor, psychologist and/or psychiatrist reports and notes;

j.        Diagnoses and other observations;

k.       Treatment plans;

l.        Any other notes and memoranda. 

16.  It is proposed that the subpoena be returnable before me on 22 February 2023 at 9:00am.

17.  Counsel for the Director agrees that it is appropriate for the subpoena to be issued in the terms indicated in "MFI 1”.

18. I am satisfied that the requirements of s 79F of the Act are met. The present is an unusual matter. As the Director acknowledges, there is evidence that the complainant previously made at least one false complaint against the applicant. There is also evidence that the previous false complaint occurred at a time when the complainant was suffering from a mental health condition and was under the influence of alcohol. In these circumstances, I am satisfied that there is a legitimate forensic purpose for seeking leave for the production of documents relating to the complainant’s mental health condition and her drug and/or alcohol use. For the same reason, I am also satisfied that there is an arguable case that the evidence in relation to which leave is sought will materially assist the applicant’s case in the proceeding.

19. As Mr Ginges observed, the amended subpoena may capture documents that are not strictly “protected confidences” (such as hospital discharge summaries). In respect of any such documents, leave under the Act is not required. Mr Ginges suggested that one possibility would be for the applicant to issue two subpoenas: one directed only at documents that capture protected confidence documents, and one which is directed at documents that are not protected confidences. In my view, this course would be overly onerous to the recipient of the subpoena, who would then be required to separate the two types of documents (some of which may overlap). Rather, as a part of the preliminary examination, the Court will be in a position to identify those documents that do not fall within the scope of s 79D of the Act (to which access may be granted without leave, with the Director having first access). Both parties agreed with this course.

20. Accordingly, I grant the applicant leave under s 79D(2) of the Act to issue the subpoena in the terms indicated in “MFI 1”.

I certify that the preceding twenty [20] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker

Associate: A McKay

Date: 16 May 2025