The High Court has ordered a man sued over alleged sexual assaults to disclose psychiatric records from two institutions, and directed him and a co-defendant to disclose files relating to property transactions. The orders were made at a pre-trial discovery hearing; the court did not determine the underlying civil claims.
The plaintiff, anonymised in the judgment as J. McP., alleges she was sexually assaulted by her paternal grandfather, the first defendant, between June 2005 and January 2008, when she was aged nine to 12. The judgment records that the first defendant pleaded guilty in 2010 to 18 criminal counts concerning offences against her and was sentenced to imprisonment.
In the civil proceedings, the plaintiff seeks damages from the first defendant and alleges negligence by the second defendant, her paternal grandmother. She also claims the defendants transferred three properties in 2010 to defeat her damages claim, and seeks an order under section 74 of the Land and Conveyancing Law Reform Act 2009 declaring those transactions void. The defendants deny the negligence and conspiracy claims.
The first defendant admitted in his civil defence to touching and rubbing the plaintiff near her vagina on a limited number of occasions, describing the conduct as innocent horseplay. He also said he had little insight into his offending behaviour, while denying inappropriate cognitive distortions about children and sex. The plaintiff argued that these pleas, and her claim for exemplary damages, made his psychiatric records relevant. The defendants opposed disclosure, arguing the records were confidential and irrelevant to liability or damages.
Justice Barr said psychiatric records are highly confidential, but may be ordered disclosed where necessary to do justice between the parties. He concluded that by putting his mental state and level of insight in issue in the defence, the first defendant had opened the way to discovery. The judge left to the trial judge whether that evidence will be relevant to issues at trial; he made no ruling on the adequacy of the defence.
The first defendant must disclose records from St. John of God’s Hospital and the Granada Institute for the period 1 January 2008 to 15 April 2010, and swear his own affidavit of discovery within eight weeks. Both defendants must disclose files concerning the specified property transactions for 1 January 2008 to 1 January 2011, also by affidavits within eight weeks. The court made discovery orders only; it did not decide liability, damages, or whether the transfers should be set aside.