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  • Unreported Judgment

R v DO

 

[2019] QDCPR 49

 

DISTRICT COURT OF QUEENSLAND

 

CITATION:

R v DO [2019] QDCPR 49

PARTIES:

THE QUEEN
(respondent)

v

DO
(defendant)

FILE NO/S:

686/19

DIVISION:

Criminal

PROCEEDING:

Application pursuant to section 14G of the Evidence Act 1977 (Qld)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

18 October 2019

DELIVERED AT:

Brisbane

HEARING DATE:

14 October 2019

JUDGE:

Smith DCJA

ORDER:

1. I grant leave pursuant to section 14F of the Evidence Act 1977 (Qld) for the Crown and the Defence to:

(a) Inspect exhibit 7B.

(b) Obtain copies of exhibit 7B.

(c) Produce, adduce and use the contents of exhibit 7B at the trial.

2. The documents in the possession of the parties are to be returned to the Registry at the conclusion of the trial or an appeal.  

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – sexual assault counselling privilege – whether leave should be granted for the parties to inspect and photocopy protected counselling information – whether the protected counselling communication will have substantial probative value – whether the public interest in admitting the communication outweighs the public interest in preserving the confidentiality of the communication and protecting the counselled person from harm

Criminal Law (Sexual Offences) Act 1978 (Qld) s 4A

Evidence Act 1977 (Qld) ss 14A, 14B, 14F, 14G, 14H

R v HJE & HRB [2019] QDCPR 24 cited

R v JML [2019] QDCPR 23 applied

COUNSEL:

Mr M Gawrych for the crown

Ms J Horne for the defendant

Mr T Morgans for the counselled person

SOLICITORS:

Office of the Director of Public Prosecutions for the crown

Legal Aid Office Queensland for the defendant

Women’s Legal Service for the counselled person

Introduction

  1. [1]
    The defendant is charged with one count of rape of the complainant, which offence is alleged to have occurred on a date unknown between 4 September 2002 and 6 September 2004 at Deagon in the state of Queensland.
  1. [2]
    The defendant, through his lawyers, has applied for leave pursuant to ss 14F and 14G of the Evidence Act 1977 (Qld) (“the Act”) to subpoena protected counselling communication records and information and to produce to a court and adduce evidence of or otherwise use a protected counselling communication and otherwise disclose, inspect or copy a protected counselling communication. 

Background

  1. [3]
    The defendant is charged with the penial rape of the complainant on a date unknown between 4 September 2002 and 6 September 2004. The complainant was then aged between 4 and 5 years old. The applicant was aged between 18 and 20 years old. He is her paternal uncle. The defendant and the complainant’s grandparents resided at an address in Deagon. The complainant often visited the home with her parents and younger siblings. On one occasion when the complainant visited the address with her parents she recalls going upstairs, perhaps to use the toilet. She ended up in the spare room of the house with the defendant. She ended up on the bed with no pants on – the defendant must have taken them off – and the defendant put his penis in her vagina and was thrusting in and out. When he left he said, “No, you’re not good enough. You’re not even worth it”. The complainant did not tell anyone at that point.
  1. [4]
    In her statement dated 29 March 2018 to the police, the complainant at para 27 says that she did not speak to anyone else of the incident until 2016. She was working with a discipleship group called [redacted]. There was an opportunity to share something with the group. She told the group about what happened when she was a child but did not go into the details. It was towards the end of 2016 that she told her mother and later her father. She was encouraged to report the matter to the police. On 29 March 2018 she attended the Carseldine Police Station and gave her statement.
  1. [5]
    It is common ground that on 15 August 2019 the complainant attended a conference with a crown prosecutor. She said she had reported the matter to Bravehearts in 2017 and completed an online form. Bravehearts referred the matter to the Queensland Police Service.
  1. [6]
    Further, on 16 August 2019 the crown disclosed a victim impact statement from the complainant in which the complainant referred to trauma suffered as a result of the offending and in which she said she had attended numerous psychologists’ and doctors’ appointments and received medication to deal with the trauma from the abuse. She also told the prosecutor she had attended her GP, a psychologist from Todays Psychology, the Caboolture Hospital mental health unit, the PA Hospital and had been referred to the Logan Hospital.

Submissions

Defendant’s submissions

  1. [7]
    The defence submits that a significant issue at the trial will be whether penetration occurred. This is because a police officer in a QPS occurrence report disclosed on 16 August 2019 contained the following information: “During the offence times the offender has rubbed his penis on the victim child’s vagina”.
  1. [8]
    In a statement from a police officer he said that on 27 July 2017 he had read the Bravehearts report relating to the complainant and contacted the complainant to ask her whether she wished to make a complaint and she briefly told him about the offending. The officer stated, “I do not recall exactly what the complainant said due to the time that has passed however the complainant explained that the offence took place in Deagon and that the male offender had rubbed penis on her vagina between her labia when she was either 4 years or 5 years of age”. The officer did not ask further questions at that time and created a “rape” occurrence in the QPS system because he understood the penis had gone beyond the labia. The word “on” in the occurrence report is a mistake and should have read “in”.
  1. [9]
    In a further conference dated 16 August 2019 with the crown, the complainant said that she knew the defendant inserted his penis because he held it in his hand to insert it and put both his hands beside her head and thrust.
  1. [10]
    The applicant submits there is an inconsistency in the description of the offending. It is submitted that the disclosures to Bravehearts would be admissible as preliminary complaint evidence and the Bravehearts records may provide another account of the offending. Also the Queensland Health records and other counselling records are substantially probative concerning a diagnosis of mental illness or disorder, indicia of illogical thoughts, memory problems, medication prescribed, frequency of counselling and/or treatment sought and any other matter which undermines the reliability of the complainant’s memory. Any disclosure may be inconsistent with the disclosures made to police. It is submitted that in the circumstances of the case, the public interest in admitting such material substantially outweighs the public interest in protecting confidences.

Counselled person’s submissions

  1. [11]
    The complainant submits that access by a defendant’s representatives to a complainant’s counselling records may have detrimental effects upon the counselled person and may deter other victims from seeking out and obtaining counselling following sexual abuse where they know the records are likely to be seen by the defendant’s legal representatives. It is submitted that in all of the circumstances, access to the material produced should be refused.
  1. [12]
    The counselled person relied on an affidavit tendered pursuant to section 14H(3) of the Act. By reason of section 14H(5) of the Act this was not disclosed to the other parties and was placed in a sealed envelope and marked as exhibit 6.
  1. [13]
    After discussions during argument I provided a number of documents which I thought to be potentially of significant probative value to Mr Morgans to obtain instructions on and to make appropriate redactions in the event they were disclosed.
  1. [14]
    Mr Morgans after obtaining instructions provided the original bundle as Exhibit 7A and the redacted bundle as Exhibit 7B. He did not oppose leave being given for some of the documents but opposed leave with respect to the Bravehearts document.

Crown submissions

  1. [15]
    The crown maintains a neutral position with respect to the application. It leaves the matter to the court to make a determination concerning the matter.

Discussion

  1. [16]
    In reaching my decision I have had regard to the evidence and the submissions made by counsel.
  1. [17]
    Section 14A of the Act provides:

14A Meaning of protected counselling communication

  1. (1)
    A protected counselling communication is an oral or written communication made in confidence—
  1. (a)
    by a counselled person to a counsellor; or
  1. (b)
    by a counsellor to or about a counselled person to further the counselling process; or
  1. (c)
    about a counselled person by a parent, carer or other support person who is present to facilitate communication between the counselled person and a counsellor or to otherwise further the counselling process.

  1. (3)
    For subsection (1) it does not matter whether the communication was made—
  1. (a)
    before or after the act or omission constituting the sexual assault offence committed or allegedly committed against the counselled person occurred; or
  1. (b)
    in connection with the sexual assault offence, or a condition arising from the sexual assault offence, committed or allegedly committed against the counselled person.
  1. (4)
    A reference in this division to a protected counselling communication includes a reference to—
  1. (a)
    a document to the extent it contains a protected counselling communication; or
  1. (b)
    evidence to the extent it discloses a protected counselling communication.” 
  1. [18]
    I have considered the following documents and am satisfied that they constitute “protected counselling communications” as relevantly defined in s 14A of the Act: 
  1. (a)
    Todays Psychology records;
  1. (b)
    Caboolture Hospital records;
  1. (c)
    Bravehearts records;
  1. (d)
    Metro South records;
  1. (e)
    PA Hospital records; and
  1. (f)
    Logan Hospital records.  
  1. [19]
    Section 14D of the Act provides:

14D Sexual assault counselling privilege

A person can not do any of the following things in connection with the proceeding—

  1. (a)
    compel, whether by subpoena or otherwise, another person to produce a protected counselling communication to a court;
  1. (b)
    produce to a court, adduce evidence of or otherwise use, a protected counselling communication;
  1. (c)
    otherwise disclose, inspect or copy a protected counselling communication.” 
  1. [20]
    Section 14F of the Act provides:

14F Sexual assault counselling privilege

A person can not do any of the following things in connection with the proceeding, other than with the leave of the court hearing the proceeding—

  1. (a)
    compel, whether by subpoena or otherwise, another person to produce a protected counselling communication to a court;
  1. (b)
    produce to a court, adduce evidence of or otherwise use, a protected counselling communication;
  1. (c)
    otherwise disclose, inspect or copy a protected counselling communication.” 
  1. [21]
    Section 14G of the Act provides:

14G Application for leave

  1. (1)
    A party to the proceeding may apply for leave of the court under this subdivision.
  1. (2)
    As soon as reasonably practicable after the application is made, the applicant must give the following persons a notice complying with subsection (3)—
  1. (a)
    each other party to the proceeding;
  1. (b)
    if the counsellor to whom the protected counselling communication relates is not a party to the proceeding—the counsellor.
  1. (3)
    For subsection (2), the notice is a written notice stating—
  1. (a)
    an application for leave under this subdivision has been made in relation to a protected counselling communication; and
  1. (b)
    a description of the nature and particulars of the protected counselling communication (other than particulars disclosing the content of the communication); and
  1. (c)
    if the counsellor or counselled person to whom the communication relates is not a party to the proceeding—that the counsellor or counselled person may appear in the proceeding under section 14L.
  1. (4)
    If the counselled person to whom the protected counselling communication relates is not a party to the proceeding, the prosecutor must, as soon as practicable after a notice is given under subsection (2), give the counselled person a copy of the notice.
  1. (5)
    The court can not decide the application until at least 14 days after subsection (2) is complied with.
  1. (6)
    However, the court may waive the requirement to comply with subsection (2) if, in relation to the proceeding—
  1. (a)
    notice has been given of a previous application for leave under this subdivision relating to the same protected counselling communication; or
  1. (b)
    the counselled person to whom the protected counselling communication relates has consented to the waiver of the requirement; or
  1. (c)
    the court is satisfied—
  1. (i)
    exceptional circumstances exist that require the waiver of the requirement; and
  1. (ii)
    it is in the public interest to waive the requirement.
  1. (7)
    For subsection (6)(b), the consent must be given—
  1. (a)
    in writing; or
  1. (b)
    if the counselled person can not give written consent because of a disability—orally.” 
  1. [22]
    Section 14H of the Act provides:

14H Deciding whether to grant leave

  1. (1)
    The court can not grant an application for leave under this subdivision unless the court is satisfied that—
  1. (a)
    the protected counselling communication the subject of the application will, by itself or having regard to other documents or evidence produced or adduced by the applicant, have substantial probative value; and
  1. (b)
    other documents or evidence concerning the matters to which the communication relates are not available; and
  1. (c)
    the public interest in admitting the communication into evidence substantially outweighs the public interest in—
  1. (i)
    preserving the confidentiality of the communication; and
  1. (ii)
    protecting the counselled person from harm. 
  1. (3)
    In deciding the matter mentioned in subsection (1)(c), the court must have regard to the following matters—
  1. (a)
    the need to encourage victims of sexual assault offences to seek counselling;
  1. (b)
    that the effectiveness of counselling is likely to be dependent on maintaining the confidentiality of the counselling relationship;
  1. (c)
    the public interest in ensuring victims of sexual assault offences receive effective counselling;
  1. (d)
    that disclosure of the protected counselling communication is likely to damage the relationship between the counsellor and the counselled person;
  1. (e)
    whether disclosure of the communication is sought on the basis of a discriminatory belief or bias;
  1. (f)
    that the disclosure of the communication is likely to infringe a reasonable expectation of privacy;
  1. (g)
    the extent to which the communication is necessary to enable the accused person to make a full defence;
  1. (h)
    any other matter the court considers relevant.
  1. (3)
    For deciding the application, the court may consider a written or oral statement made to the court by the counselled person outlining the harm the person is likely to suffer if the application is granted.
  1. (4)
    If an oral statement is made by the counselled person under subsection (3), while the statement is being made the court must exclude from the room in which the court is sitting—
  1. (a)
    anyone who is not an essential person; and
  1. (b)
    an essential person, if—
  1. (i)
    the counselled person asks that the essential person be excluded; and
  1. (ii)
    the court considers excluding the essential person would serve a proper interest of the counselled person.
  1. (5)
    The court must not disclose, or make available to a party to the proceeding, a statement made to the court under subsection (3).
  1. (6)
    The court must state its reasons for granting or refusing to grant the application.
  1. (7)
    If the proceeding is a trial by jury, the court must hear and decide the application in the absence of the jury.
  1. (8)
    In this section—

harm includes physical, emotional or psychological harm, financial loss, stress or shock, and damage to reputation.” 

  1. [23]
    These provisions were discussed in R v JML[1] which has been followed in R v HJE & HRB[2].
  1. [24]
    In JML Judge Fantin referred to the Explanatory Notes to the Victims of Crime Assistance and Other Legislation Amendment Bill 2016 and noted the policy objectives for introducing a sexual assault counselling privilege.  At [37] her Honour noted these as: 

“(a)  A person’s private, psychological and physical boundaries are invaded during a sexual assault and the harm inflicted on an individual can have long-term impacts.  Sexual assault counselling services play an integral role in assisting people to recover;

  1. (b)
    Since the late 1990s, all other Australian jurisdictions have introduced some form of statutory evidential privilege to limit the disclosure and use of sexual assault counselling communications during legal proceedings.  These statutory protections seek to recognise the public interest in encouraging people who have been sexually assaulted to seek therapy to assist in their recovery and may also encourage them to report the crime to police; and
  1. (c)
    Recommendation 130 of the Domestic and Family Violence Task Force Report Not Now, Not Ever: Putting an End to Domestic and Family Violence in Queensland released on 28 February 2015 was that the Queensland government introduce a sexual assault counselling privilege, based on the New South Wales legislative model, which provides an absolute privilege in preliminary proceedings and a qualified privilege in other proceedings.  In accepting this recommendation, the Queensland government acknowledged the benefits of the NSW model as it seeks to ensure the appropriate balance in each case between the right to a fair trial and the public interest in preserving the confidentiality of counselling communications.”
  1. [25]
    As her Honour noted the scheme seeks to balance the competing public interests of ensuring the fair trial of an accused while respecting the privacy of counselling communications.
  1. [26]
    Section 14H(1)(a) provides that the first matter to be considered then is whether the protected counselling communication will have substantial probative value. This is determined by an analysis of the facts in issue in the proceedings. For example, as Judge Fantin noted at [53] in JML, a defendant may seek access to documents in order to formulate lines of cross-examination, for example relating to potential inconsistent statements relating to the circumstances of the offence, or by using material in the records to suggest the complainant is unreliable.[3] 
  1. [27]
    In JML it was said the word “substantial” connotes something important, ample or considerable.[4]  In the Australian Concise Oxford Dictionary it is said to mean “of real importance or value.”
  1. [28]
    The principal facts in issue in this case would appear to be whether the complainant was sexually assaulted at all and further, whether penetration occurred. Clearly enough, the credibility and the reliability of the complainant will be crucial in this case.
  1. [29]
    Once the defendant establishes there is a substantial probative value in obtaining and inspecting the records, the second limb under s 14H(1)(b) of the Act is whether there are other documents or evidence available to which the communication relates. 
  1. [30]
    The final matter is the weighing of competing public interests (s 14H(1)(c) of the Act).  That is, that the public interest in admitting the communication into evidence “substantially outweighs” the public interest in preserving the confidentiality of the communication and in protecting the counselled person from harm.  This is a balancing exercise and the matters set out in s 14H(2) of the Act  are matters to which the court must have regard. 
  1. [31]
    Turning then to the relevant records, having considered these submissions and the entirety of the records, it is my view that the bulk of the records do not achieve a substantial probative value and even if they did, it is my opinion that bearing in mind most relate to treatment of the complainant, the public interest in preserving the confidentiality of the communication and in protecting the counselled person from harm outweighs the public interest in admitting the communications into evidence.
  1. [32]
    In those circumstances with respect to those documents (aside from the ones discussed below) I am not satisfied that the public interest in admitting the communications into evidence substantially outweighs the public interest in preserving the confidentiality of the communications and protecting the complainant from harm.
  1. [33]
    I therefore refuse the defendant’s application with respect to all documents aside from those mentioned below.
  1. [34]
    It is my view that some of the documents do achieve a substantial probative value, the evidence cannot be obtained from any other source and the public interest in admitting the documents substantially outweighs the public interest in preserving the confidentiality of the communication and in protecting the complainant from harm.
  1. [35]
    The first of these documents relates to an admission to the Logan Hospital on 5 April 2019. In this document the complainant discusses her regaining of the memory of the “traumatic event”. In my opinion this could provide the defence a fertile ground for cross examination as to the complainant’s memory of the event in question. After discussion with Mr Morgans it was agreed this could be provided in a redacted form (Exhibit 7B). I agree with the redactions.
  1. [36]
    With respect to the document from the Princess Alexandra Hospital dated 5 March 2019, there is reference to the complainant having memories brought back of being raped when she was 5 because of an event which occurred about 2 years prior to 2019. Again, in my opinion, this could provide the defence a fertile ground for cross examination as to the complainant’s memory of the event in question. After discussion with Mr Morgans it was agreed this could be provided in a redacted form (Exhibit 7B). I agree with the redactions.
  1. [37]
    With respect to the note from Todays Psychology dated 21 March 2019, there is reference to the complainant remembering the alleged rape when she was in her first year of university. Again in my opinion this could provide the defence a fertile ground for cross examination as to the complainant’s memory of the event in question. After discussion with Mr Morgans it was agreed this could be provided in a redacted form (Exhibit 7B). I agree with the redactions.
  1. [38]
    With respect to the entry dated 15 May 2019 from the Redcliffe Caboolture Crisis Assessment Centre, there is reference to the complainant saying that the incident while commuting to university triggered memories from abuse as a child. Again in my opinion this could provide the defence a fertile ground for cross examination as to the complainant’s memory of the event in question. After discussion with Mr Morgans it was agreed this could be provided in a redacted form (Exhibit 7B). I agree with the redactions.
  1. [39]
    Mr Morgans continued his objection to the Bravehearts referral form. This document was the online intake form which was referred to the police in an email dated 22 June 2017. His principal argument was the document did not achieve a substantial probative value which substantially outweighed the section 14H(1)(c) matters. His alternative argument was the fact of the referral is referred to in the officer’s statement at paragraph 5.
  1. [40]
    In my opinion the evidence contained in the form is not obtainable from another source. The police officer does not refer to the details of the complaint.
  1. [41]
    Further, the document in my view does have a substantial probative value. It is preliminary complaint evidence of how and when the complaint was made under section 4A of the Criminal Law (Sexual Offences) Act 1978 (Qld). It is my view the crown would be entitled to call the person who received the form as a preliminary complaint witness. It also explains how the matter came to go to the police. Further the online form contains details about the offence, namely it was sexual assault. It contains details relating to the offender’s identity, to where the offence took place and to where it occurred. The record has the real potential to bolster the complainant’s credibility at the trial. 
  1. [42]
    Also the document details some particulars of the alleged offence which may provide an important line of cross examination by the defence.
  1. [43]
    On the other hand I appreciate the counselled persons argument, namely that her approach to an organisation such as Bravehearts should be kept confidential. On her case she was brave enough to come forward at that point and disclose the serious offence allegedly committed upon her.
  1. [44]
    I might have been disposed to have accepted her argument if details of the counselling were contained in the record but the fact no such details are referred to in the document or the attached email.
  1. [45]
    I consider the public interest in admitting the Bravehearts documents substantially outweighs the public interest in preserving the confidentiality of the communication and in protecting the complainant from harm. I agree with the proposed redactions contained in exhibit 7B.

Formal orders

  1. I grant leave pursuant to s 14F of the Evidence Act 1977 (Qld) for the crown and the defence to:
  1. (a)
    Inspect Exhibit 7B.
  1. (b)
    Obtain copies of Exhibit 7B.
  1. (c)
    Produce, adduce and use the contents of exhibit 7B at the trial. 
  1. The documents in the possession of the parties are to be returned to the Registry as the conclusion of the trial or appeal. 

Footnotes

[1]  [2019] QDCPR 23. 

[2]  [2019] QDCPR 24.

[3] R v JML [2019] QDCPR 23 at [53]. 

[4] R v JML [2019] QDCPR 23 at [55]. 

Close

Editorial Notes

  • Published Case Name:

    R v DO

  • Shortened Case Name:

    R v DO

  • MNC:

    [2019] QDCPR 49

  • Court:

    QDCPR

  • Judge(s):

    Smith DCJA

  • Date:

    18 Oct 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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