D (SC 26/2019) v R [2019] NZSC 72

D (SC 26/2019) v R [2019] NZSC 72 [10 July 2019]NOTE: ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANTPURSUANT TO S 200 OF THE CRIMINAL PROCEDURE ACT 2011REMAINS IN FORCE. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360346.htmlNOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360350.htmlNOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT UNDER THE AGE OF 18YEARS WHO APPEARED AS A WITNESS PROHIBITED BY S 204 OF THECRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360352.htmlIN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 26/2019[2019] NZSC 72BETWEEN D (SC 26/2019)ApplicantAND THE QUEENRespondentCourt: William Young, O'Regan and Ellen France JJCounsel: R M Mansfield and B N Kirkpatrick for ApplicantJ E L Carruthers for RespondentJudgment: 10 July 2019JUDGMENT OF THE COURTThe application for leave to appeal is dismissed.____________________________________________________________________REASONS[1] The applicant was convicted after a District Court jury trial of two counts ofsexual conduct with a child under the age of 12 years and one count of sexual violationby unlawful sexual connection. The victim was his stepdaughter, who was seven yearsof age at the time of the offending. One of the allegations against the applicant wasthat he penetrated the complainant's vagina with his finger on more than one occasion.[2] On becoming aware of the complaints against him, the applicant sought mentalhealth assistance from a mental health helpline. The call was recorded and a transcriptof the call was provided to the police. The Crown decided to introduce this as part ofits case, and reached an agreement with the counsel then acting for the applicant onhow the transcript would be edited. References to the fact that the call was to a mentalhealth helpline, the fact that the applicant expressed suicidal ideations and had doneso previously, and details of past associations with mental health services were alldeleted. The agreed transcript is set out in full in the judgment of the Court of Appeal.1The transcript records the applicant telling the call taker about the allegations havingbeen made, during the course of which the applicant said "at the moment I've just toldmy partner that I've been checking her daughter". When asked what he meant by thishe said "I've been looking at her private parts for signs of sexual abuse". The Crowncase was that this was an inculpatory statement.[3] The applicant's appeal to the Court of Appeal centred on the helpline call. Inthe Court of Appeal it was argued that:(a) the call was protected by medical privilege (s 59 of the Evidence Act2006) and should not have been admitted;(b) if that was incorrect, the trial Judge and the applicant's trial counselerred in allowing the call to go to the jury in edited form therebyexcluding from the jury's consideration the proper context in which thecall had been made; and1 D (CA54/2018) v R [2019] NZCA 1 [CA judgment] (Asher, Lang and Moore JJ) at [18].(c) the Judge erred in denying the applicant an opportunity to advance hisfull defence when explaining the context of the call.[4] The Court of Appeal dismissed the appeal. The applicant now seeks leave toappeal against that decision. He advances his application for leave on the samegrounds as he pursued in the Court of Appeal. In addition, he argues that the call wasconfidential and should not have been disclosed at trial pursuant to s 69 of theEvidence Act. The applicability of s 69 was raised for the first time during the Courtof Appeal hearing.[5] The Court of Appeal found that the helpline call was not privileged under s 59.Section 59 provides:59 Privilege in criminal proceedings for information obtained bymedical practitioners and clinical psychologists(1) This section—(a) applies to a person who consults or is examined by a medicalpractitioner or a clinical psychologist for drug dependency orany other condition or behaviour that may manifest itself incriminal conduct; (2) A person has a privilege in a criminal proceeding in respect of anycommunication made by the person to a medical practitioner orclinical psychologist that the person believes is necessary to enablethe medical practitioner or clinical psychologist to examine, treat, orcare for the person for drug dependency or any other condition orbehaviour that may manifest itself in criminal conduct.[6] The applicant wishes to argue that the call to the helpline was privileged unders 59(2). He maintains that, although the call taker was not a medical practitioner orclinical psychologist, a call to someone who acts as a conduit for a clinicalpsychologist comes within the section. The Court of Appeal did not decide this point.2In addition he submits that the call was necessary to enable treatment for his suicidalstate, which could lead to the commission of offences. The Court of Appeal rejectedthis argument on the basis that there was no evidence of a link between the applicant'ssuicidal thoughts and a sexual attraction to young children. The suicidal ideation was2 CA judgment, above n 1, at [22]–[23].linked to the disclosure of the allegations, rather than to any tendency the applicanthad to be sexually attracted to children.3[7] We accept that the interpretation of s 59 does potentially give rise to a point ofpublic importance. But we do not see the present case as an appropriate case for thegrant of leave to consider s 59. Even if it were accepted that the call should be treatedas a communication to a clinical psychologist, the applicant would need to establishthat the Court of Appeal erred in rejecting his argument that the call was necessary toenable treatment for a condition that may manifest itself in criminal behaviour. We donot see sufficient prospects of that argument being successfully advanced to justify thegrant of leave.[8] In relation to s 69, the Court of Appeal accepted that the call to the helplinewas confidential information within the ambit of that section, which provides a trialJudge with a discretion to prohibit the disclosure of such information in a proceeding.Section 69(3) sets out a list of factors to which a Judge must have regard in decidingwhether to give a direction under s 69 preventing disclosure of confidentialinformation in a proceeding. The Court of Appeal undertook this exercise, whichrequired the balancing of factors that arose from the particular facts of the case.[9] We accept there is room for argument about the way the discretion under s 69should be exercised and about the weighing of the factors in s 69(3) on the facts of thepresent case. But the exercise is fact-specific and we do not consider there is sufficientprospect of the outcome reached by the Court of Appeal being disturbed on appeal tojustify the grant of leave on this point.[10] The applicant wishes to argue that the Court of Appeal erred in rejecting hisargument that the call, if it was to be adduced, should have been adduced in an uneditedform. The Court of Appeal considered the evidence of the applicant's trial counsel asto why he agreed to this course, and concluded that the trial counsel had sound reasonsfor the approach he took.4 Equally, the Court determined that the trial Judge made no3 At [27].4 At [45].error in allowing the edited transcript to be adduced in evidence and that nomiscarriage arose.5 The applicant acquiesced in the approach taken by his counsel.[11] We do not see any appearance of miscarriage in the way the Court of Appealaddressed this issue. And, given its specificity to the facts of this case, no point ofpublic importance arises.[12] The last point follows on from the point just mentioned, which is the fact thatthe defendant was restricted in his explanation of what he said during the call to thehelpline. The Court of Appeal accepted that providing the edited transcript did lead tothis restriction.6 The reason the applicant was restricted was because the trial Judgemade directions limiting the applicant's ability to give evidence tending to implicatethe complainant's father (to whom the complainant had disclosed the allegations ofoffending by the applicant). The applicant wished to give evidence of his concern thatthe complainant's father may have been sexually abusing her, based on reports ofsexualised behaviour on her part and an allegation that the complainant's brother hadseen the father watching pornography.[13] The trial Judge ruled that giving evidence of the reports would breach s 44 ofthe Evidence Act. So the applicant was limited to an explanation for his conduct thathe was concerned because of what his wife had told him and that the only reason hehad examined the complainant's vagina was to ensure there was nothing wrong. TheCourt considered the transcript of the evidence in which the applicant provided hisexplanation for his conduct and concluded that the evidence he gave permitted him torespond to the Crown's submission that his comment to the call taker amounted to anadmission of sexual abuse.7 This included the observation that the applicant and hiswife regularly examined the complainant's genitalia together, and that he did so onlyonce without his wife present. The Court considered that this meant that nomiscarriage of justice arose and that the applicant was not compromised in his essentialdefence or prevented from advancing his theory of the case.85 At [47].6 At [49].7 At [67].8 At [68].[14] Again we see no appearance of miscarriage in the way the Court of Appealaddressed this issue and, given its specificity of the facts of the case, no point of publicimportance arises.[15] The applicant also wishes to mount an argument about the test that should beapplied by an appeal court where trial counsel failed to object to evidence that shouldnot have been admitted. The applicant says that a different standard has been appliedin different decisions of the Court of Appeal.9 Even if the applicant is right about that,the issue would not arise in the present case (given our conclusion on the earlier pointsraised).[16] We dismiss the application for leave to appeal.Solicitors:Crown Law Office, Wellington for Respondent9 R v Horsfall [1981] 1 NZLR 116 (CA); and R v P [1996] 3 NZLR 132 (CA).