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  • Unreported Judgment

R v CDJ

 

[2020] QDCPR 115

DISTRICT COURT OF QUEENSLAND

CITATION:

R v CDJ [2020] QDCPR 115

PARTIES:

THE QUEEN

(Respondent/Prosecution)

v

CDJ

(Applicant/Defendant)

FILE NO:

135/20

DIVISION:

Criminal

PROCEEDING:

Pre-Trial Hearing

ORIGINATING COURT:

Maroochydore District Court

DELIVERED ON:

19 November 2020

DELIVERED AT:

Maroochydore District Court

HEARING DATE:

26 June 2020, with further written submissions received up to 10 August 2020.

JUDGE:

Long SC, DCJ

ORDER:

The application be dismissed.

CATCHWORDS:

PRIVILEGE – SEXUAL ASSAULT COUNSELLING PRIVILEGE – LEAVE TO SUBPOENA PROTECTED COUNSELLING COMMUNICATION – Where Part II, Division 2A of the Evidence Act 1977 (Qld) is understood to be modelled on Chapter 6, Part 5, Division 2 of the Criminal Practice Act 1986 (NSW) – Where the New South Wales legislation contains some substantial differences to the Queensland legislation – Whether the Court should order the production of documents containing protected counselling communication for the purpose of applying s 14H of the Evidence Act 1977 (Qld) – Whether inspection of such documents for the purpose of applying s 14H of the Evidence Act 1977 (Qld) would involve an appropriate exercise of the judicial function or is legislatively permitted

PRIVILEGE – SEXUAL ASSAULT COUNSELLING PRIVILEGE – PARTIES TO THE PROCEEDING – Where in an application for leave to subpoena documents containing protected counselling communication, the prosecution took a “neutral” and largely non-active role in the application – Observations as to the position of the prosecution as a necessary party to such an application and also the standing of the “counselled person” and “counsellor” pursuant to s 14L of the Evidence Act 1977 (Qld)

LEGISLATION:

Criminal Code 1899 (Qld), s 590AA

Criminal Practice Act 1986 (NSW), Ch 6, Pt 5, Div 2

Criminal Practice Rules 1999 (Qld), r 31

Evidence Act 1977 (Qld), Pt 2, Div 2A and Sch 3

CASES:

ER v Khan [2015] NSWCCA 230

KS v Veitch (No 2) (2012) 84 NSWLR 172

NAR v PPC1 [2013] NSWCCA 25

R v JML [2019] QDCPR 23

R v Spizzeri [2000] QCA 469

R v Stylianou [2018] NSWCCA 300

R v Swaffield (1998) 192 CLR 159

Rohan v R [2018] NSWCCA 89

COUNSEL:

KW Gover for the Applicant/Defendant

AQ Stark for Respondent/Prosecution

DR Gates for the Counselled Person

SOLICITORS:

Lawler Magill for the Applicant/Defendant

Director of Public Prosecutions for the Respondent

Women’s Legal Service for the Counselled Person

Introduction

  1. [1]
    By indictment presented in this Court on 30 April 2020, the applicant is charged with seven counts of rape and two counts of common assault, of the same complainant.  Each offence is alleged to have been committed on or about 4 August 2019, at Sippy Downs. 
  2. [2]
    As is expressed in the application, it is brought in the proceeding on that indictment and is necessarily an application pursuant to s 590AA(2)(ka) of the Criminal Code 1899 (Qld), as it is expressed to be “an application for orders under s 14G of the Evidence Act 1977 (Qld)”.  More specifically the following orders are sought:

“1. That pursuant to s 14F of the Evidence Act 1977 (Qld), leave be granted to the Defence to issue a subpoena to [a counsellor], requiring her to produce to the court ‘all clinical notes, reports, attendance records, referrals, and other clinical records held by [a psychological service] in relation to [the complainant]’; and

  1. That, pursuant to s 14F of the Evidence Act 1977 (Qld), leave be granted for the Crown and the Defence to:

 a. inspect and copy the documents produced pursuant to the subpoena referred to in Order 1 of these orders (‘the Documents’); and

 b. produce, adduce, and otherwise use the Documents at trial.”

  1. [3]
    Whilst it will be necessary for discussion in greater detail below, this application seeks to engage the still relatively new and problematic provisions of Division 2A of Part II of the Evidence Act 1977 (Qld) (“Division 2A” and “Evidence Act”), which was introduced in order to provide for “sexual assault counselling privilege”[1] and to regulate disputed claims in respect of such privilege and to provide for a qualified operation of the privilege in certain circumstances.
  2. [4]
    In the first instance, it may be noted that the privilege is provided by subdivisions 2 and 3 and applies only in respect of the nominated types of proceedings. Pursuant to subdivision 2, the privilege is provided, in absolute terms, in respect of committal proceedings and proceedings relating to bail for an offence. Subdivision 3 is applicable to other proceedings for the trial or sentencing of a person for an offence and those relating to domestic violence orders under the Domestic and Family Violence Protection Act 2012 (Qld).[2]  In application to the later types of proceeding and as relevant here, the privilege is expressed to operate broadly but in qualified terms, as follows:

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. [5]
    Secondly, it is convenient to note that s 14G allows for applications for leave, as follows:

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. [6]
    Thirdly, it may be noted that the privilege inheres in the “counselled person”, as defined by reference to the following broad terms in s 14B:

counselled person means a person who—

  1. (a)
    is being, or has at any time been, counselled by a counsellor; and
  1. (b)
    is, or has at any time been, a victim or alleged victim of a sexual assault offence.

counsellor means a person who—

  1. (a)
    has undertaken training or study, or has experience, that is relevant to the process of counselling other persons; and
  1. (b)
    in the course of the person’s paid or voluntary employment, other than as a religious representative, counsels another person.”

This is because, as provided in s 14I, it is only a counselled person, who is aged 16 or more and not a person with impaired capacity for giving the consent, who may waive the privilege.

  1. [7]
    Fourthly, it is of significance to note that the privilege is made applicable to “protected counselling communications” (“PCC”) and that the limits of that concept are provided by the definition in s 14A.
  2. [8]
    Fifthly by s 14L and if not “a party to a proceeding to which subdivisions 2 or 3 applies”, it is provided that “[t]he counselled person or counsellor may appear in the proceeding, including any appeal”. However the qualifying condition is that the section applies if “the court is deciding whether a document or evidence relating to the counselled person or counsellor is a protected counselling communication.”

First Return

  1. [9]
    By the first return of this application, on 22 May 2020, the notification requirements of s 14G had been completed and legal representatives appeared for the applicant, the prosecution and the counselled person.  The relevant counsellor had, by then, indicated an intention not to appear in the application.
  2. [10]
    As has been the experience of the court in similar types of application, including in other instances where the application has come before the court prior to the steps required by s 14G being completed and where it is not therefore ascertained who will seek to be heard on the application, the parties jointly, or by consent, proposed a collection of orders designed to provide for an ultimate hearing of the application, which included the following:[3]

“1. All electronic and paper records held by [the counsellor] relating to the care, treatment or provision of services to [the complainant] be produced to the Maroochydore District Court by 4:00pm on Monday 1 June 2020 and to facilitate this order the legal representatives for the accused are to provide a copy of these orders to [the counsellor]. 

2. The legal representatives for the counselled person have leave to inspect and copy the material produced to the Court Registry by [the counsellor], with the Registry to provide them with an electronic or hard copy of any material received from [the counsellor] by 4:00pm on 3 June 2020.                      

  1. The documents are to otherwise remain sealed and not be accessed without an order of the Court.” (emphasis omitted)
  1. [11]
    Other directions were sought and given, in terms of listing the application for a hearing, with directions as to the provision of written outlines by the parties, including the counselled person, and allowing for the provision of a statement of harm by the counselled person.[4]  However, and after discussion of some considerations arising in respect of the relevant legislative provisions, it was determined by the Court that it was not appropriate to make orders as sought above in paragraphs 1 to 3.  Instead, a single order was made as follows:

“The counselled person and her legal representatives have leave to inspect and copy any documents, whether written or electronic, held by [the psychological service] in respect of [the complainant] including documents withheld in accordance with Pt II, Div 2A of the Evidence Act 1977 (Qld).”

  1. [12]
    An essential difficulty with the orders which had been proposed by the parties lies in the scope of the prohibitions in s 14F, which relevantly include that “a person cannot … other than with the leave of the court hearing the proceeding… produce to a court” or “otherwise disclose… a protected counselling communication”.  And in an understanding that such a grant of leave requires the application of s 14H which 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. (2)
    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. [13]
    Although not necessarily appearing on the face of this application, but potentially more problematically evident in other similar instances, may be a tendency to override other issues which may arise in respect of responses to subpoenae and as are particularly provided for in rule 31 of the Criminal Practice Rules 1999 (Qld).[5] It is necessary to understand that the provisions in this Division of the Evidence Act are only concerned with the privilege attaching to PCC and it is not to be assumed that all of the material which might be sought to be subpoenaed will be within the relevant definition, notwithstanding the apparent ambit of s 14A.  As is further noted below, s 14M expressly provides for determination as to whether material in issue is PCC or not. 
  2. [14]
    It was evident that, similarly to the experience of the Court in other similar applications, the underlying motivation of the contention that despite the terms of s 14F, the first step is that the court order the production of the Documents, is to both facilitate the inspection of them by the legal representatives for the counselled person and inevitably, by the court.  The latter expectation is understood to be derived from a perception as to practices adopted in New South Wales in respect of similar legislation, upon which it has been noted that the Queensland provisions are said to be modelled.[6]
  3. [15]
    However, what may be noted is that there are some substantial differences in the respective provisions and in respects which may be further noted as having been influential in the practices discussed in some decisions in respect of the New South Wales legislation.  To the extent that the New South Wales decisions may encourage an approach of early production of the documents so as to facilitate inspection by the court (which, as will be discussed below, is not necessarily uniformly evident), regard must necessarily be had to the relevant differences in the legislative provisions:
    1. (a)
      First it is far from clear that any such direction or order is made before the appearance of the “counselled person”, in s 295 of the Criminal Procedure Act 1986 (NSW) (“CP Act”) referred to as the “principal protected confider” (“PPC”), who by s 299A of the CP Act, is given standing to appear:

“A protected confider who is not a party may appear in criminal proceedings or preliminary criminal proceedings if a document is sought to be produced or evidence is sought to be adduced that may disclose a protected confidence made by, to or about the protected confider”;

  1. (b)
    Secondly, and despite s 299B of the CP Act bearing the heading: “Determining if there is a protected confidence”, subsection (1) differs from s 14M(2) in that it is provided:

If a question arises under this Division relating to a document or evidence, a court may consider the document or evidence”; and

  1. (c)
    Thirdly, Division 2A of the Evidence Act contains no equivalent to the following terms of s 299B(3) of the CP Act:

“A court must not make available or disclose to a party (other than a protected confider) any document or evidence to which this section applies (or the contents of any such document) unless—

  1. (a)
    the court determines that the document does not record a protected confidence or that the evidence would not disclose a protected confidence, or
  1. (b)
    a party has been given leave under this Division in relation to the document or evidence and making available or disclosing the document or evidence is consistent with that leave.”
  1. [16]
    In KS v Veitch (No 2),[7] a judge had refused to set aside a subpoena on the application of a PPC and had allowed an accused to inspect certain of the documents that had been produced. The subpoena had been issued without leave first having been granted pursuant to s 298(1). The PPC sought leave to appeal pursuant to s 5F(3AA) of the Criminal Appeal Act 1912 (NSW). In reference to the terms of s 299B, Basten JA then explained their reach:

[27] The procedural steps set out in s 299B become necessary in circumstances where the court is required to consider the criteria identified in s 299D, even for the purpose of considering a grant of leave to issue a subpoena. That problem did not arise prior to amendments made in 2010. In an earlier version, s 298 relevantly provided:

‘298 Evidence of sexual assault communications may be required to be produced in, or in connection with, criminal proceedings, or adduced, with leave

  1. (1)
    A person who objects to production of a document recording a protected confidence on the ground that it is privileged under this Division cannot be required (whether by subpoena or any other procedure) to produce the document for inspection by a party in, or in connection with, any criminal proceedings unless:
  1. (a)
    the document is first produced for inspection by the court for the purposes of ruling on the objection, and

(b) the court is satisfied (whether on inspection of the document or at some later stage in the proceedings) that:

  1. (i)
    the contents of the document will ... have substantial probative value ....’

[28] Section 299B reflects the same procedural purpose, namely that the court have access to the document before deciding whether it should be made available to a party and that it should have the relevant powers to ‘facilitate its consideration of’ the document: s 299B(4). The potential inconsistency between that provision and s 298(1) (in its current form) was addressed by the inclusion of s 299B(5), introduced by the Courts and Crimes Legislation Amendment Act 2012, Sch 1.1 [11], which commenced on 21 March 2012.

[29] Although in terms s 298(1) prohibits a party, without leave of the court, from seeking the issue of a subpoena with respect to documents containing protected confidences, the facts that the documents were produced only to the Court and that the Court could itself have taken steps to ensure that it had access to the documents before ruling on an application for leave, suggest that the issue of the subpoena without leave, although irregular, achieved a purpose which could have been achieved by other means. In the circumstances, it was open to the trial Court to disregard the irregularity and consider the documents in determining whether the respondent should have access to them.”

  1. [17]
    The provisions of s 299B of the CP Act may, in part, be compared to s 14M, which provides:

“14M Deciding whether document or evidence is protected counselling communication

  1. (1)
    This section applies if a question arises under this division in relation to a proceeding to which subdivision 2 or 3 applies.
  1. (2)
    The court may consider a document or evidence to decide whether it is a protected counselling communication.
  1. (3)
    While the court is considering the document or evidence, the court must exclude from the room in which it is sitting—
  1. (a)
    anyone who is not an essential person; and
  1. (b)
    an essential person, if—
  1. (i)
    the counselled person to whom the document or evidence relates 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. (4)
    The court may make any other order it thinks fit to facilitate its consideration of the document or evidence.
  1. (5)
    This section applies despite sections 14D and 14F.”
  1. [18]
    The decision in Rohan v R,[8] is instructive as to the potential significance of some difference in the legislation. A focus of attention was upon the following terms of s 299B of the CP Act:

299B Determining if there is a protected confidence

(1) If a question arises under this Division relating to a document or evidence, a court may consider the document or evidence.

  1. (2)
    If there is a jury, the document or evidence is to be considered in the absence of the jury.
  1. (3)
    A court must not make available or disclose to a party (other than a protected confider) any document or evidence to which this section applies (or the contents of any such document) unless--
  1. (a)
    the court determines that the document does not record a protected confidence or that the evidence would not disclose a protected confidence, or
  1. (b)
    a party has been given leave under this Division in relation to the document or evidence and making available or disclosing the document or evidence is consistent with that leave.
  1. (4)
    A court may make any orders it thinks fit to facilitate its consideration of a document or evidence under this section.
  1. (5)
    This section has effect despite sections 297 and 298.”
  1. [19]
    The issues for the Court of Criminal Appeal were described as follows:

[47] Later in the judgment, and included in that set out above (at [38]), the judge held that s 299B was irrelevant.

[48] The applicant submitted in this Court that a question arose under Pt 5 Div 2 relating to the documents the subject of the motion and her Honour had the power to order that they be produced to the court to facilitate her consideration of the leave that was sought.

[49] It was submitted that there was error in her Honour not considering s 299B and there was error in not giving reasons for not facilitating consideration of the documents sought under the subpoenas by examining the documents.

[50] The complainant contended in written submissions that s 299B is enlivened if a question arises as to whether a document or evidence contains a protected confidence. There was no issue about that in the present matter and so the primary judge was correct to observe that s 299B had no application.

[51] It was also contended in the complainant’s written submissions that the legislation expressly contemplates that the determination of leave to issue a subpoena under s 298(1) will occur prior to the issue of a subpoena and in the absence of the relevant documents. For that reason, the issue of inspecting the documents and her Honour's powers under s 299B(4) did not arise.”

  1. [20]
    It was determined that:

[53] The heading to the section is misleading. It is not part of the Act: s 35 of the Interpretation Act 1987 (NSW).

[54] Nothing in the terms of the provision confines its application to ‘determining if there is a protected confidence’. It applies, ‘If a question arises under this Division relating to a document or evidence’. It may be the case that a question arises as to whether there is a protected confidence. But other questions might also arise under the Division relating to a document or evidence, including, for example, whether under s 299D(1)(a) there is ‘substantial probative value’.”

  1. [21]
    By way of contrast, not only is the heading to s 14M part of the Act, pursuant to s 14(2) of the Acts Interpretation Act 1954 (Qld), the rejected interpretation is expressly stated in s 14M(2):

“The court may consider a document or evidence to decide whether it is a protected counselling communication.”

  1. [22]
    The application of this provision requires reference to the defined meaning of  “protected counselling communication” in s 14A:

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. (2)
    However, a communication made to or by a health practitioner about a physical examination of the counselled person conducted in the course of an investigation into an alleged sexual assault offence is not a protected counselling communication.
  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. (5)
    In this section—

health practitioner means a person registered under the Health Practitioner Regulation National Law to practice a health profession.”

Accordingly, it may be seen that the primary focus is upon communications of certain kinds, which may be oral or written, but subsection (4) is critical to an understanding that the inclusion of documents and evidence within the defined concept is only “to the extent it contains [or, in the case of evidence, discloses] a protected counselling communication”. In respect of a document, that extent may be complete, in the sense that it is the relevant written communication, or only partial. In either sense, it may “contain” such a communication. Despite the difficulty in language, the purpose of the provision would appear to be in application to documents (or evidence) to the extent that such records or discloses a protected counselling communication but not otherwise.

  1. [23]
    Some contrast can be discerned in respect of the respective position in New South Wales. Whilst in s 296 of the CP Act there are definitions of “protected confidence” and “counselling communication”, which involve similar concepts to those engaged in s 14A(1) and (3), except that the concept of “communication” is not expressly noted as “oral or written”, s 298 is expressed in terms that are clearly and simply addressed to documents which record such communication:

(1) Except with the leave of the court, a person cannot seek to compel (whether by subpoena or any other procedure) any other person to produce a document recording a protected confidence in, or in connection with, any criminal proceedings.

  1. (2)
    Except with the leave of the court, a document recording a protected confidence cannot be produced in, or in connection with, any criminal proceedings.
  1. (3)
    Except with the leave of the court, evidence cannot be adduced in any criminal proceedings if it would disclose a protected confidence or the contents of a document recording a protected confidence.”

Should it be assumed that the Court will necessarily inspect the Documents?

  1. [24]
    As is expressly pressed for the applicant in this matter, a question arises as to whether there should be an assumption underlying such applications that it is necessary or desirable for the Court to have the Documents produced, as it will inevitably be necessary for the Court to inspect them in order to determine the application for leave.
  2. [25]
    In respect of the application of s 14H, the applicant particularly relies on the following observations of Adams J in respect of the equivalent New South Wales provision in s 299D of the CP Act, in NAR v PPC1:[9]

“[4]    Speaking generally, it is obvious that the s 299D issues cannot be considered without examining the documents themselves or having sufficient information to make what might be called the statutory inquiries. The practical reality will almost invariably be that the documents have to be examined. That, indeed, was this case. Since reading the material was essential, the learned trial judge, in my respectful view, had a duty to do so, regardless whether or not it was requested. The application for access, which enlivened s 299D, of necessity implied a request to examine the material. (In my view, it should be inferred that his Honour did examine it.) I readily acknowledge that this places a heavy burden on trial judges but it is an inescapable consequence of the draconian terms in which the legislation is drafted. It might be appropriate for the Parliament to consider empowering the judge to give access to counsel for the Crown and defence to examine the material and make submissions (perhaps in writing to preserve confidence) on whether, and in what way, the s 299D tests are or are not satisfied. This would considerably simplify the judge's task. Such access could be subject to non-publication conditions, including a prohibition on disclosing the material to any other persons, including of course, either police or the accused.

[5]     It was envisaged here that the subpoenaed material contained protected confidences. It was also expected that they would deal with the complainant's psychiatric state both before and after the alleged offence. To perhaps oversimplify somewhat, the applicant sought, and failed - at least at the very early stage at which the matter was argued - to show that this was or was likely to be relevant to the issues in the trial. The sexual incident alleged by the complainant is denied by the applicant and, on the face of it, it is difficult to see what relevance (let alone substantial probative value) the psychological material might have. However, it is plain that the complainant's credit will very much be in issue and it might be that that material contains information which reflects on her credit. Certainly, the extensive use of prohibited drugs is associated with other criminal behaviour undertaken to support what is usually an expensive habit and might well be relevant to credit. Furthermore, on the complainant's own account, her description of what occurred changed significantly by way of adding further very serious assaults following what she described as a "mental crisis". This raises several significant issues, of which the most obvious is whether, in fact, she had such a crisis and, if so, its relationship to the further disclosure and, indeed, the earlier non-disclosure. Whether the material deals with these questions is unknown and, even if it did, it might not satisfy the statutory test. All these matters plainly enough required the judge to examine the material for himself. This was all the more necessary as neither the applicant nor the Crown had access to the material and the judge has the overriding duty of ensuring a fair trial…”

It is then contended that these remarks make it clear that:

  1. (a)
    “A judge determining an application under s 14G must undertake the onerous task of reviewing and considering the material sought before deciding whether to grant leave”;
  2. (b)
    “Division 2A requires the court to consider the relevant material and ensure the applicant receives a fair trial, without receiving the benefit of informed submissions by the Crown and the defence”; and
  3. (c)
    “That doing so recognizes the importance of ensuring a fair trial as was recognized in the explanatory note for the introduction of Division 2A, which refers to ‘the appropriate balance in each case between the right to a fair trial in the public interest in preserving the confidentiality of counsel and communications’.”[10]

And it is contended that such an approach should be followed so that the material is produced to be viewed by the judge only.

  1. [26]
    The envisaged process is contented to be that the judge effectively trawl the produced material for documents that touch on the “following issues which may have substantial probative value:
  1. (a)
    Any version of events that is inconsistent with the version the complainant gave during her s 93A interview;
  1. (b)
    Disclosures by the complainant that suggest the sexual acts were consensual;
  1. (c)
    Disclosures about the night of the incident that provide a basis for a mistake of fact as to consent, for example prior flirtation with the applicant, any acts or statements of encouragement during the sexual contact, or the absence of explicit acts or statements indicating the contact was not consensual; and
  1. (d)
    Any diagnosis, observations, or admissions that indicate the complainant is not a truthful person.”[11]
  1. [27]
    Although the circumstances upon which this application is premised are more fully addressed below,[12] little by way of narrowing of the potential issues for trial is provided, in that it is asserted:

“54.   Where the applicant has not participated in a record of interview, the credibility of the complainant and her account will be the focus of the trial. It is accepted that there was contact of a sexual nature between the applicant and the complainant on the night of the alleged offending. The key questions at trial are therefore likely to be:

a.  The particular acts that occurred between the applicant and the complainant;

b. Whether the complainant consented to those acts; and

c. Whether the applicant held an honest and reasonable, but mistaken, belief as to consent.”

  1. [28]
    In the context of what has been noted as to the limited basis upon which any inspection of the document is expressly allowed, pursuant to s 14M(2), it may be immediately questioned that leave applications should proceed, from the outset, upon any assumption that it will be necessary, or even desirable, to have any documents produced for inspection. This is particularly so before the issues in the application are joined. As reference to ER v Khan[13] demonstrates, issues which may warrant inspection of the documents can readily arise in respect of determination as to whether the documents contain “protected counselling communication”. For instance, as to whether the communication was made in the circumstance prescribed in s 14A(1), including as to whether it was “made in confidence” or involved both a “counselled person” and a “counsellor” or a “counselling process” (see: s 14B). The following observations of interest, were made in the Khan decision:

“81. In determining if a protected confidence exists in relation to a particular document or other record a court is, of course, entitled to do so on the basis of an examination of the contents of a document or record and, as well, upon the basis of any evidence concerning or relating to the same or both: s 299B(1). As to the latter, the evidence in the present proceedings, including in particular the affidavit evidence referred to above at [44], is examined below.

 

  1. There was, and could have been, no issue as to the onus or burden of proof in establishing sexual assault communications privilege. As to the issue of the onus on a claim for legal professional privilege see Kennedy v Wallace (2004) 142 FCR 185; [2004] FCAFC 337 at [13]. Whilst the provisions of Division 2 do not expressly deal with that aspect, Mr Little of counsel, on behalf of the applicant, properly conceded that his client, in claiming that the documents in question were privileged, carried the onus of establishing that proposition.
  1. In the present case, it was open to the applicant to establish sexual assault communication privilege by evidence, including the evidence of any relevant counsellor and/or any other person in order to establish the nature or character of particular documents/records, as being, for example, a counsellor’s record of counselling communications such as notes or reports relating to a protected confidence that fell within one of the four categories referred to in s 296(4).”
  1. [29]
    An understanding that it may be for the person seeking the enforcement of “sexual assault counselling privilege” (see heading to s 14F), to establish that it applies (as opposed to a need for the person seeking the production, adduction or disclosure of a protected counselling communication, to confront the necessity of satisfaction in respect of the requirements of s 14H), may go some way towards explanation of the allowance of what may effectively be an ex-parte procedure as to examination of documents, for that purpose, in s 14M(3). This serves to support a view as to the limited basis for which such examination is legislatively allowed.
  2. [30]
    Moreover and particularly where leave is sought to subpoena the documents, the fundamental obstacle to the proposed order for the immediate production of the documents which are the subject of the application, lies in the prohibitions set out in s 14F.  Whilst those prohibitions only apply “in connection with” a proceeding of the type referred to in s 14E, it may be noted that quite apart from preventing a person from compelling “by subpoena or otherwise” another person to produce PCC, a person is prevented from producing such to a court or adducing evidence of or otherwise using PCC, without the leave of the court hearing the relevant proceeding.  Further there is a similar prohibition that a person can not “otherwise disclose, inspect or copy” a PCC.  And as is then provided in s 14H, such leave may only be granted pursuant to and having regard to the stringent criteria set out in that section.
  3. [31]
    As was noted above, in reference to the Veitch (No. 2) decision,[14] but in the different legislative context applying in New South Wales, it was there recognized that there was an ancillary power which enabled the court to have the documents in issue produced for inspection in deciding an application.  Such power was identified in s 299B(4) and (5) of the CP Act, which whilst bearing some similarity with the provisions found in s 14M(4) and (5) of the Evidence Act 1977 (Qld), refer back to what has been determined to be the broad application of s 299B(1). However and in the context of the different legislative provisions, the reference to facilitation of the Court’s consideration of the document or evidence, in subsection 14M(4), is necessarily a reference to what is earlier provided in s 14M(2) and therefore that a court “may consider a document or evidence to decide whether it is a protected counselling communication”.
  4. [32]
    It was in this context that the potential unworkability of the prohibitive effect of s 14F(c) applying to even the counselled person, because of the application before the court and the nexus to the proceeding of a kind referred to in s 14E(a), that the order referred to in [11] above, was made.  This was upon the basis of providing the counselled person with the ability to determine whether and to what extent, the privilege was maintained, being directed at facilitation of the prospect that the court “may consider a document to decide whether it is [PCC]”.

The basis of the application

  1. [33]
    The counselled person has sought to identify that except for 2 of 76 pages of the psychologist’s records, the privilege is maintained.[15]
  2. [34]
    Initially, the applicant submitted that:

“44. … The first question for the court to consider is whether some or all of the documents sought by the applicant fall within this definition. Any documents which, in the court’s view, are not protected counselling communications are liable to be subpoenaed in the ordinary manner without the leave of the court.”[16]

However, it was also conceded that the likelihood is that what is sought will primarily be records of oral disclosures made by the complainant in confidence and therefore PCC.[17] Notwithstanding this, it was subsequently contended that:

“4.  The applicant accepts that the documents sought are likely to be privileged counselling communications but, for the following reasons, does not concede that issue absolutely:

  1. It cannot be assumed that all of the counselling communications were made ‘made in confidence’. The documents sought may include, for example, communications made in the presence of the counselled person’s parent. Div 2A does not include an equivalent to s 296(3) of the Criminal Procedure Act 1986 (NSW), which provides that ‘a communication may be made in confidence even if it is made in the presence of a third party’. The court must consider the documents to determine whether the communications were ‘made in confidence’.
  1. It cannot be assumed that all of the communications were made to a ‘counsellor’, within the definition contained in s 14B of the Act. Communications may have been made, for example, to reception staff at Caloundra Psychological Services.

c.  The draft subpoena seeks the counselled persons ‘attendance records’. It is respectfully submitted that these records do not contain or disclose protected counselling communications.”[18]

Similarly, it was the position for the counselled person that “in the legislative scheme a threshold question for the court is the determination of whether the material sort (sic) to be accessed or used is ‘protected counselling communication’”.[19]

  1. [35]
    At the outset, it may be noted that such submissions appear to be underpinned by an understanding that upon the making of this application it becomes necessary for the Court to embark upon an examination of the material to determine not just whether the claim for privilege is to be allowed but also the leave issue. An essential problem with such an approach is that the application is axiomatically one for leave to subpoena PCC.
  2. [36]
    Moreover and except perhaps in one respect, it is realistically, as was as effectively noted for the counselled person, understood to be the accepted likelihood, that the application is directed at material which almost certainly is within the purview of s 14A.[20] Further and in respect of the potential exception, it was also not understood to be pressed that the circumstances gave rise to any realistic expectation that material in the nature of “any diagnosis, observations, or admissions that indicate the complainant is not a truthful person” would be contained in the documents sought and the application was not pressed on that basis.
  3. [37]
    It is therefore convenient to proceed to consider the implications of the application for leave pursuant to s 14G, having regard to the criteria in s 14H. It is of some importance to bear in mind, notwithstanding that the application seeks leave also to inspect and copy the documents produced by subpoena and to “produce, adduce and otherwise use the documents at trial”, it is, in the first instance and necessarily, an application for leave to subpoena the material. Ordinarily, it might be considered that it is only after any such material is returned under subpoena, that there is any necessity to consider the other steps which are encapsulated. Further and although it may not be necessary to decide any such issues in this application, it may be wrong to assume that what appear to be several such steps or hurdles to be confronted, are to be decided once and for all purposes, at the outset. However and as will be further discussed, the criteria to be applied pursuant to s 14H(1)(a), to an application for leave to subpoena such documents, requires attention to whether the PCC “will, by itself or having regard to other documents or evidence produced or adduced by the applicant, have substantial probative value”. 
  4. [38]
    The circumstances upon which the application is premised are set out, as follows, in the applicant’s written outline:
    1. (a)
      First, there is the following outline of the allegations:

“4.  The indictment before the court charges the applicant with seven counts of rape and two counts of common assault, each during the course of the same incident in the early hours of 4 August 2019. The rape charges involve four counts of oral penetration, two counts of vaginal penetration, and one count of digital penetration of the vagina. The common assault charges relate to two alleged slaps to the face.

  1. The allegations are, broadly, that on the night of 3 August 2019 the applicant and complainant were at a gathering at the home of [E and M] in Sippy Downs. The complainant was aged 16 at that time and was friends with [M]’s daughter, [B]. The applicant was aged 23 and knew the family through work with [E]. He had not met the complainant previously. Other persons present on the night included [J and R].
  1. The complainant alleges that, in the early hours of the morning, the applicant asked to talk with her away from the group. She then recounts a series of sexual offences occurred in a period of about 1 ½ hours in area adjacent to the house, which are set out below. It is not in contest that the applicant was significantly intoxicated at the time of the alleged offending.”
  1. (b)
    Secondly, there is reference to what are described as “notes from the Sexual Assault Investigation Kit (SAIK), performed at 12.15pm on 4 August 2019”, in order to support a contention that:

“10. These brief notes are inconsistent with the version she later gave to police in they do not record the first alleged vaginal penetration, the final incident of alleged oral rape, or any digital penetration of the vagina. The notes also record a third slap to the face which was not disclosed in the s 93A interview.”

Of course, any such inconsistency will need to be established in the cross-examination of the maker of the notes as to what was or was not said to that person by the counselled person;

  1. (c)
    Thirdly, there is reference to what is described as the “s 93A interview” conducted with the counselled person, by reference to extracts from the transcription of the recording of that interview, as follows:

“13.  She alleges that after this incident:

‘[J] pulled me aside and was like, you need to just completely avoid him, 'cause he’s really drunk, like he’s not thinking straight, and he like thinks you’re really attractive and he’s not thinking. And so I avoided eye contact with him, I made sure we weren’t like getting up at the same time, things like that.’

  1. She alleges that [J] also said, ‘[the applicant] told us that he wants to like fuck you and wants to make you suck his dick.’ These allegations are not supported by the witness statement of [J].
  1. The complainant alleges that, in the early hours of the morning, the group went into the garage to inspect at [B’s father’s] new boat. During this time, she alleges the applicant ‘touched [her] arse, and like, reached over and touched [her] boobs, and [she] … looked at him, and got out of the boat.’
  1. The applicant then pulled the complainant aside and said, ‘Hey can I talk to you for a second?’ She said, ‘yeah, okay.’ They walked down the driveway onto the road in front of the house.
  1. The applicant said, ‘I've seen the way you've been looking at me’ and ‘I know that you wanna do things.’ The complainant replied, ‘you’re getting the wrong impression. … let’s just go back inside … that’s not what I meant at all, that wasn’t my intention.’ The applicant then ‘kind of guided’ her and ‘with his hand on [her] back … pushed her’ towards the visitor car park outside the house. They ‘went up against someone random’s car.’
  1. The applicant kissed her then pushed her away and said, ‘You’re going to suck my dick.’ She replied, ‘If we go inside now … I won’t say a word. … I just wanna go inside.’ He said, ‘Nuh, nuh, you've given me like eyes all night, and you've been flirting with me all night.’ She said, ‘I … honestly haven’t been, I’ve avoided you.’ The applicant then grabbed her head, pushed her down, and forced her to suck his penis. She later added that he ‘suddenly kicked the tips of my shoes in, to make me sort of slip’ onto her knees.
  1. After a short period, the applicant allegedly ‘grabbed’ her back up by her hair and pulled her away, grabbing her wrist. He said, ‘We’re going to my car’. They walked towards his car but he didn’t have his keys, so ‘he slapped [her] over the face really hard, because he said that [she] should’ve had his keys.’ She later said this slap ‘wasn’t painful’ but ‘just like a bit of a wake up’.
  1. The applicant then said something to the effect of, ‘Fine, we’ll go down an alleyway then.’ The complainant said they should go back inside and that ‘everyone’s gonna be suspicious’. He replied, ‘Nuh, you’re coming with me’ and held her wrist again. The complainant says that he held her by each wrist during the incident.
  1. The applicant then pulled her down the alleyway next to the [E and M]’s house and onto a ‘septic sewerage tank’. She says that he sat on the tank and took his pants off, then ‘made [her] suck his dick again’. She describes him as ‘very forceful’ and said ‘he’s a bigger guy, and I’m obviously not huge.’ She alleges that the applicant then picked her up, turned her around and ‘ripped [her] pants off’. She was wearing black tights. He then ‘had both [her] hands behind [her] back’ and ‘forced [her] to kind, well, to sit on, to him, so like, for him to have sex with [her].’ She later said, ‘I didn’t pull away or anything, but I just sat there.’
  1. The applicant then got angry, lifted her back up and put her on the ground. He allegedly ‘grabbed [her] whole head’ and ‘forced [her] to like suck his dick again instead’. She bit him on the penis to try and get away.
  1. During her first account, the complainant said she stood up then he ‘clapped [her] over the side of the head, and [she] fell to the ground.’ She later alleged that this slap took place while she was ‘sort of kneeling’. Her ears were ringing. She said, ‘Just stop … just give me a minute’. He said, ‘Nuh, you don’t need a minute.’ During her first account she claimed that he said, ‘Pull my pants up you slut’ and grabbed both her hands to pull his pants up. She later said that ‘he pulled his pants up’.
  1. The applicant then grabbed her wrist again and walked her further down the alleyway towards a big tree. She “wasn’t pulling against him” and but was ‘tryna egg him on, to lead, go back towards the house.’ The applicant then collapsed because he was ‘very, very drunk’. He was still holding the complainant’s wrist, so he pulled her down on top of him. He then pulled her pants down again and asked her to take her shoes off, but she refused.
  1. The applicant then took his pants off tried to kiss her. She pulled her head away. She said that he lifted her up again and sat her on top of him, facing away with her hands behind her back. The applicant stood up again, ‘'cause he just wanted to keep moving’. The complainant says she was “all like teary and just emotional.” She said, ‘dude, I don’t even know you … can we please go back.’ The applicant said, ‘yeah, yeah, we will, like it’s okay, you looked at me like this, you asked for this’. She replied, ‘no … I didn’t.’
  1. They walked a bit further up the alleyway. He turned to kiss her again. She states, ‘my whole like, literally, my feet were pretty much off the ground, he was holding my head up.’ Then he kicked out the back of her knees to make her fall to her knees. Later on, the complainant alleged that he ‘[pushed her] down, like, the littlest bit, and [she] fell’, without any mention of kicking her knees out.
  1. She alleges that he pulled his penis out of his pants and got her to ‘suck it again’. He then stood up, turned her around, and bent her forward. He pulled her pants down a bit and ‘quickly tucked it in’. She stood forwards and ‘pulled out of it.’ The complainant did not mention this rape during her second recounting of the incident until after she was reminded by the interviewing officer.
  1. The complainant that she ‘pulled [her] pants up, and had like an opportunity to walk away’. She then said, ‘then he tripped over, like, stumbled, and I don't know why, but like I reached out to help him, like just instinct I guess.’
  1. He allegedly ‘got angry’ and grabbed her hand. They got up and kept walking to the fence at the back of the primary school. The applicant was ‘too drunk to climb the fence’. He collapsed, then pulled her down with him. He allegedly made her ‘suck his dick again’. He then turned her around to try and have sex with her again but she stood up. She says:

‘I just sat next to him, because I could tell that he was like, gonna throw up, like he was gagging. And so I like just calmly took it out of me, stood up, and sat next to him with his hand like around my hand still.’

  1. During the second recounting of her version, the complainant alleged for the first time that the applicant had his finger in her vagina during this final incident. She said:

‘Like when I was on my knees and sucking him, he had one hand, he had both hands on my face and was pulling me forward. And then kind of leant like underneath me, and went like, in my pants, and I like put my legs together and tried to pull it back, and he pulled me onto him. And I was sitting on his lap.’

  1. When the interviewing officer raised this inconsistency, the complainant said:

‘Yeah, 'cause he made me sit on him, like he pulled me forward, and wrapped both legs around him, and that’s why my knees were really grazed, 'cause he turned me around, 'cause he was sitting, leaning against the fence.

And then had me in like a, I don't even know what you’d call it, like a kneeling position, I guess.

On all fours.

I sucked his penis before that.

He, 'cause I was sucking it, and then stopped, 'cause he um was gagging, and I said, are you okay, he lifted my legs up, and put my legs over either side of him.

So I was sitting on him.

And then turned me around, 'cause I was like, yeah, I’m gonna get up, and like, as I went to get up, turned me around in front of him, between his legs.

I was there facing away from him again.

His penis didn’t go into me, I don’t think, like I’m pretty sure it didn’t. He just pulled it, my vagina, back, like he wanted it to.

But he was, I think it was, he was too drunk, like it didn’t go in again.

OFFICER GILBERT: Yeah. So the finger in the vagina?

[COMPLAINANT]: That was then, like, that was--

OFFICER GILBERT: Okay.

[COMPLAINANT]: Yeah.

OFFICER GILBERT: And tell me about his finger being in your vagina.

[COMPLAINANT]: He just put one finger in me, and then like, kind of used that finger to pull me closer, like, using my vagina to pull me in.

OFFICER GILBERT: Mmhmm.

[COMPLAINANT]: And like, I pulled my pants up, and he like, pulled them back down.

OFFICER GILBERT: Mmhmm.

[COMPLAINANT]: And then he was full gagging again, like, [INDISTINCT].

OFFICER GILBERT: Mmhmm.

[COMPLAINANT]: While his finger was inside me. And then pulls his finger out, yeah no, he definitely like, he didn’t, his penis didn’t go into my vagina that time.’

  1. The complainant says that the applicant then said, ‘get the fuck away from me, because I need to vomit.’ He let her hand go and she ‘just bolted and ran back to my friend’s house.’
  1. She first spoke to [R]. [R] told police that the complainant said, ‘I can’t tell [B]’s dad, because [the applicant] threatened to bash um, bash [J] and [B]’s dad.’ The complainant did not recount this to police. When asked whether anyone told her not to say any she told police the applicant had said, ‘No one’s gonna find out, it’s gotta be okay. Um, you’re not going to tell anybody, and I’m not gotta tell anybody’; and
  1. (d)
    Fourthly and after noting that the complainant did not shower before “the SAIK”, it is observed that the majority of tested areas of her body and clothing, for DNA analysis, returned indicia of a single contributor consistent with the complainant’s DNA profile and that the only mixed results were in respect of the complainant’s lips and the interior and exterior rear of her underpants, with the interior rear of her underpants returning a relatively low statistical likelihood, that it was 37 times more likely the applicant had contribute than not”.
  1. [39]
    As to the application of s 14G and s 14H, it is correctly pointed out that the approach in R v JML[21] was to adopt what was there contended to be the approach adopted in New South Wales. That is contended as appropriate on the basis that:

“38.    … The Explanatory Note for the bill introducing Div 2A expressly states that, although the Queensland legislation is not uniform, it ‘implements a [sexual assault counselling privilege] based on the NSW model.’ Relevantly for present purposes, the NSW legislation presents similar procedural questions.[22]

 Particular reference is then made to the observations of Adams J in NAR v PPC1,[23] in support of submissions that:

“40.  The remarks of Adam J make clear that a judge determining an application under s 14G must undertake the onerous task of reviewing and considering the material sought before deciding whether to grant leave.

  1. The importance of ensuring a fair trial was recognised by the legislature in introducing Div 2A. The Explanatory Note refers to ‘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. As recognised by Adam J, the legislative framework places a significant onus on the sitting judge. Division 2A requires the court to consider the relevant material and ensure the applicant receives a fair trial, without receiving the benefit of informed submissions by the Crown and the Defence.
  1. It is respectfully submitted that the court should follow this approach in the present matter and order the production of the material sought by the applicant to be viewed judge only.”                                                       

  In addition to what has been noted as to the significance of the decision in Rohan, as to significant differences in the respective legislative provisions, it is useful to note that, in the context of ultimately determining that the primary judge had been correct to refuse leave for subpoena of the records, despite not having considered them, it was observed (after expression of some hesitation as to the potential reach of s 299B, as had been accepted in Veitch – which hesitation was not shared by Walton J at [3]-[5]):

[61]   In NAR v PPC1 [2013] NSWCCA 25; 224 A Crim R 535, Adams J took s 299B even further. First, he described (at [3]) a ‘most unlikely case’ as one in which the applicant for leave to issue a subpoena ‘is already aware of the contents of the documents sought to be produced and is in a position to establish the requirements of s 299D(1) without the actual production of the documents’. Then, for all other cases he said (at [4]):

           ‘Speaking generally, it is obvious that the s 299D issues cannot be considered without examining the documents themselves or having sufficient information to make what might be called the statutory inquiries. The practical reality will almost invariably be that the documents have to be examined.’

[62]     His Honour's observation did not commend itself to the other members of the Court; Hoeben CJ at CL noting that ‘the issue does not arise for consideration in this matter’. The case was not concerned with a question of leave to issue a subpoena; documents had been produced pursuant to a subpoena that had been issued without leave. The issue was whether a trial judge was wrong in refusing the accused access to the documents, with an intermediate issue being whether the judge was wrong in not considering the documents pursuant to s 299B(1).

[63]     Counsel for the applicant submitted that despite the lack of agreement by the other members of the Court in NAR v PPC1, what was said by Adams J had subsequently been the subject of unanimous agreement by the members of the Court in ER v Khan [2015] NSWCCA 230; (2015) 254 A Crim R 1.

[64] ER v Khan was concerned with a judge having reviewed a large volume of documents produced under subpoena and determining that a number of them did not involve any protected confidence. The protected confider sought leave to appeal against that determination. Counsel for the present applicant founded his submission upon a passage in the judgment of Hall J at [105]-[108] in which there was reference to the earlier judgment of Adams J. Counsel also pointed to the fact that Hoeben CJ at CL and Button J had both agreed with the judgment of Hall J.

[65]     It is true that Hall J did refer with apparent approval to the observation of Adams J in NAR v PPC1 at [4] and it is also true that the other members of the Court agreed with the judgment of Hall J. Hall J prefaced his quotation from that paragraph by saying, ‘In circumstances such as these, the practical difficulties that face a judge in determining the existence of a protected confidence has previously been the subject of attention and discussion in NAR v PPC1’.

[66]     The ‘circumstances such as these’ Hall J was referring to was the task of a judge examining a very large number of documents in order to determine whether they contained protected confidences. His Honour was not talking about, let alone endorsing, what Adams J had said about a process that should be undertaken in relation to an application for leave to issue a subpoena.

[67]    Accepting what was said in KS v Veitch (No 2) about the availability of a discretion of a judge to compel the production of documents in order to determine a question of leave to issue a subpoena (despite my reservations) it is clear that the primary judge erred in holding that s 299B was irrelevant. To the extent that the judge disavowed the availability of the power under s 299B(4) to order the production of the documents there was an error of principle.”

This followed upon recognition of the discretionary nature of the power in s 299B for a court to consider the document or evidence in question (see Rohan at [58] and [67]). The extent to which the requirements of s 299B (provisions mostly not reflected in the Queensland legislation) in conjunction with the issues to be addressed in s 299D, may have influenced the extent to which examination of the documents has been seen as necessary, in particular cases, is evident from the following observations in Rohan:

[55] In KS v Veitch (No 2), a judge had refused to set aside a subpoena on the application of a protected confider and had allowed an accused to inspect certain of the documents that had been produced. The subpoena had been issued without leave first having been granted pursuant to s 298(1). The protected confider sought leave to appeal to this Court pursuant to s 5F(3AA) of the Criminal Appeal Act.

[56]    Basten JA set out the terms of s 299B in full. He then explained their reach:

[27]   The procedural steps set out in s 299B become necessary in circumstances where the court is required to consider the criteria identified in s 299D, even for the purpose of considering a grant of leave to issue a subpoena. That problem did not arise prior to amendments made in 2010. In an earlier version, s 298 relevantly provided:

  • "298 Evidence of sexual assault communications may be required to be produced in, or in connection with, criminal proceedings, or adduced, with leave
  1. (1)
    A person who objects to production of a document recording a protected confidence on the ground that it is privileged under this Division cannot be required (whether by subpoena or any other procedure) to produce the document for inspection by a party in, or in connection with, any criminal proceedings unless:
  1. (a)
    the document is first produced for inspection by the court for the purposes of ruling on the objection, and
  1. (b)
    the court is satisfied (whether on inspection of the document or at some later stage in the proceedings) that:
  1. (i)
    the contents of the document will ... have substantial probative value ...."

[28]   Section 299B reflects the same procedural purpose, namely that the court have access to the document before deciding whether it should be made available to a party and that it should have the relevant powers to "facilitate its consideration of" the document: s 299B(4). The potential inconsistency between that provision and s 298(1) (in its current form) was addressed by the inclusion of s 299B(5), introduced by the Courts and Crimes Legislation Amendment Act 2012, Sch 1.1 [11], which commenced on 21 March 2012.

[29]    Although in terms s 298(1) prohibits a party, without leave of the court, from seeking the issue of a subpoena with respect to documents containing protected confidences, the facts that the documents were produced only to the Court and that the Court could itself have taken steps to ensure that it had access to the documents before ruling on an application for leave, suggest that the issue of the subpoena without leave, although irregular, achieved a purpose which could have been achieved by other means. In the circumstances, it was open to the trial Court to disregard the irregularity and consider the documents in determining whether the respondent should have access to them.’

[57]  Beech-Jones J agreed with Basten JA (as did Harrison J) but he made ‘some additional comments which relate to the practicalities of the operation of Pt 5 Div 2’:

[84]  Much of the argument concerning Part 5 Division 2 centred upon the apparent difficulties in the application of s 299D at the point of seeking leave to issue a subpoena or other compulsive process under s 298(1). In particular it was queried as to how the Court could be satisfied that the document or evidence sought to be produced by the subpoena has substantial probative value and was otherwise not available to the accused even before the subpoena was issued? This is particularly the case so it was said because there was no means by which the Court could inspect the documents before the subpoena was issued to enable it to be appropriately satisfied that the criteria in s 299D(1) were established.

[85]     Two points should be noted in relation to this. The first is adverted to by Basten JA at [28]. The Court is empowered by s 299B(4) to make an order requiring the production of the documents to itself. This would include an order directed to third parties. In so ordering the Court is not bound by s 297 and 298 (s 299B(5)). There are obvious logistical issues raised by the making of such an order including how it is to be served, who by and who bears the cost of compliance. Senior Counsel for the Attorney General appeared to accept that the making of some regulations to facilitate such a process was warranted. In the absence of that occurring then it seems to me that the Court could require the Crown to take out and effect service of an order requiring the production of documents to itself for this purpose.

[86]   The second point is that the apparently high threshold presented by the criteria in s 299D may not be as difficult to overcome as first appears if the relevant application was supported by evidence identifying the accused's defence to the relevant allegation, what the accused expects will be obtained from the material sought to be produced or inspected and what other documents or evidence are or are not available relating to those issues and the material sought. That is not to say that those matters must be deposed to before such an application will be granted but, as a practical matter, if they were an application for leave would appear to have a greater chance of success. Of course the decision to disclose those matters cannot be forced upon an accused and the decision to do so would no doubt represent a difficult forensic choice. However, all forms of litigation involve difficult forensic choices and the effect of these provisions may only be to require that they be made earlier if documents are sought in advance of the trial.’

[58]     It is clear from this that s 299B provides a discretion for a judge determining a question arising under Pt 5 Div 2 to consider the document or evidence in question, and for the judge to make orders to facilitate that process. The Court in KS v Veitch (No 2) considered that an order requiring the production of documents was one of the orders that could be made for that purpose.”

Further and whilst in Rohan, it was determined that the primary judge had erred in failing to consider that s 299B permitted an order for production of the documents (despite no issue arising as to the documents incorporating “protected confidences”), the appeal was nevertheless dismissed, upon affirmation of the correctness of the determination of the primary judge, reached without inspection of them, that the documents sought would not have substantial probative value. A conclusion reached, upon consideration of the materials placed before the primary judge on the application for leave to subpoena the documents, as follows:

[82]  The issue raised by this ground was determinative of the application in this Court, notwithstanding the applicant's success under Grounds 1 and 2. That is because if the primary judge was correct in finding that the documents would not have substantial probative value, there was no point in her compelling their production for her inspection.

[83]    Counsel for the applicant initially made submissions that implied a contention that, in the usual case, a court had no discretion under s 299B; it had to compel the production of the documents in order to make the assessment under s 299D(1). He disavowed this and submitted that it was the circumstances of this particular case that required the documents to be produced for that purpose.

[84]    The features of this particular case are:

       The complainant claims she was sexually abused by the applicant in 2008-2009.

       Her claim is disputed and so her credibility will be in issue.

       She underwent counselling over an aggregate period of about two years in 2011 to 2014.

       The applicant suffers from a cognitive impairment such that he is unfit to be tried.

 His defence is confined to what was described in the court below as a "blanket denial".

[85]    It was contended that because of the combination of these features, this was a case in which the primary judge should have accepted the proposition that it was reasonable to assume that during counselling the complainant may have said something about whether or not she was sexually abused as she claims. The judge should also have accepted that if the complainant denied, or did not volunteer, that she had been sexually abused, such a statement, or failure, would or could have substantial probative value in relation to her credibility. The judge should then have either granted leave to issue the subpoenas, or at least compelled their production for her inspection so as to enable her to decide whether there was substantial probative value.

[86]   During the course of the proceedings below, counsel at first contended that it was reasonable to expect that a counsellor would have asked a direct and leading question of the complainant as to whether she had been abused by the applicant. He later retreated from this by conceding that a counsellor would not question a person in the position of the complainant in this way but would ask questions in a non-leading form that would allow for her to volunteer whether she had a complaint to make against the applicant.

Consideration

[87]     If counselling records disclosed that the complainant had failed to avail herself of an opportunity to make a disclosure about sexual abuse by the applicant, there would hardly be any probative value given that if evidence of this was before a court at trial, or special hearing, it would invoke a warning pursuant to s 294 of the Act (to the effect that a failure to complain in such a matter is not significant).

[88]   The application for leave to issue the subpoenas before the primary judge was based upon the prospect that the complainant may have failed to take up an opportunity during counselling to complain about sexual abuse by the applicant. Seen in the light of the provision in s 294, that would have no ‘substantial probative value’.

[89]     It must be remembered as well that the available evidence is to the effect that the complainant told a school friend in Year 7 and she wrote down a disclosure in late 2012. Otherwise, she did not tell anyone in terms of an adult or a counsellor until she indicated she was ready to do so in late 2014. In other words, there already is evidence that up until that time there was no complaint to her parents, any other adult, any counsellor or any police officer. Additional evidence of there being no complaint, or even evidence of a disavowal of having been sexually abused at a time preceding when the complainant indicated she was prepared to disclose, could not have substantial probative value.”

  1. [40]
    As is correctly pointed out for the applicant, the factual context for the decision in Rohan is of importance in understanding the ultimate determination of the case.  However the potential assistance it presently provides is particularly in terms of:
    1. (a)
      The decision that s 299B of the CP Act provides a discretion rather than mandate for the court to consider the documents; and
    2. (b)
      The obvious lack of support for the observations of Adams J. 

Such considerations are contrary to the submission maintained by the applicant that “the court cannot determine the probative value of the material without viewing each document”. Moreover, this decision does not support the following further submissions:

“20. It would be impossible for the court to satisfy itself that both the first and second limbs of s 14H(1) were met without viewing the documents sought. A court could not be satisfied of the first limb without being aware of their content. If the applicant was in a position to identify that content, it could only be through the availability of “other documents or evidence concerning the matters to which the communication relates”. In that case, leave would be excluded by the second limb.

  1. This proposition is not inconsistent with R v Rohan, which is an example of the inverse – that it is possible for a court to satisfy itself that the first limb is not satisfied without viewing the documents.”[24]
  1. [41]
    As was noted in the submissions of both the applicant[25] and the counselled person,[26] by particular reference to the decision in R v JML,[27] the use of the word “will” in s 14H(1)(a), as to an assessment of the “substantial probative value” of the communication in issue, is apt to connote “future certainty, or at the very least, likelihood, rather than mere possibility”. However and consistently with the observations which have been referenced from the decision in Veitch (No 2),in Rohan[28] it does not follow that the only way of assessing such prospect is by having the actual record of the information. Such assessment may well be greatly assisted by such availability but and particularly when the application is for leave to subpoena and therefore for access to such material, it must necessarily be implicit that the application is to be made upon what may be expected to be found there and the expected probity of such material in the trial process. That is, in the context of the stringency of the privilege otherwise given to this type of material in connection with such proceedings, such applications will depend upon the information otherwise available to an applicant and which may be placed before the Court in order to establish the necessary expectations. By application of ordinary principle, it might be expected that the requirement would be of reasonable satisfaction, or upon the balance of probabilities, as to such expectations.[29]
  2. [42]
    Whilst it should be noted that the applicant’s contentions to the effect that the Court have and inspect the documents, was not the subject of any contrary submission in the hearing, as opposed to being queried by the Court, in the case of the prosecutor that was largely because of an expressly taken stance “that this office takes a neutral position towards the application and does not seek to appear as a party to the application, except as directed to assist the court.”[30]  And for the counselled person, the position initially taken was apparently in expectation that the Court would inspect the documents, as is inherent in the following submissions:

“6.  The respondent identifies specific pages (7, 12, 27, 28, 29 and 31) upon which the courts attention is directed, where a determination may be required on whether leave should be granted for access to those pages by the applicant.

  1. Ultimately it is submitted there is nothing contained within the CPS material which is of substantive probative value or that is relevant to the issues identified by the applicant at paragraph [55] of their outline.”[31]

However, and in subsequent written submissions and whilst accepting that the court does not necessarily need to view the material in making the determination pursuant to s 14H,[32] it is maintained that “practical reality will almost invariably be that the documents have to be examined in order to make any determination”.[33]

Discussion

  1. [43]
    The essential and underlying difficulty in these submissions is disclosed in the language expressly used in the applicant’s submissions that it is “for a court to satisfy itself”.[34]
  2. [44]
    First, it may be noted that such expression is not reflective of the terms of s 14H(1), which begins with the words:

“The court can not grant an application for leave under this subdivision unless the court is satisfied that”.

Neither is it reflective of the language of s 14M(1) or (2). 

  1. [45]
    Secondly, it may be noted that this position may be contrasted with the terms of s 14K(2), which when viewed in the context of s 14K(1) clearly does place an obligation of inquiry upon the court, in the specified circumstances:

14K Court to inform of rights

  1. (1)
    This section applies in relation to a proceeding to which subdivision 2 or 3 applies if it appears to the court a person may have grounds for—
  1. (a)
    applying for leave under subdivision 3; or
  1. (b)
    objecting to the production of a document, or the adducing of evidence, that is a protected counselling communication.
  1. (2)
    The court must satisfy itself the person is aware of the relevant provisions of this division and has had an opportunity to seek legal advice.”

Otherwise it is to be noted that the issues that may arise under s 14M and s 14H, will necessarily be on an interparty application, in respect of which the role of the court is to decide or determine such application.  It is not the usual function of the judicial process for the court to act in an inquisitorial manner and this would, as has been noted in s 14K, require expression or necessary statutory implication. 

  1. [46]
    Thirdly, and notwithstanding that as a matter of practicality, some inspection as to the nature and content of subpoenaed documents may occur, in the context of determining some objections to production of or access to those documents, it has been recognised that it is not generally the role of the court, in such circumstances, to be involved in making decisions as to whether or not forensic use might be made of such documents, at least in the absence of determining objections or issues which may arise between parties.  For example and pursuant to the markedly less stringent test which applies to the general ability of a party to litigation to obtain access to documents by achieving production to a court by subpoena, it was determined in R v Spizzeri,[35] that where a question arose as to whether a party should be permitted to inspect the documents which are produced, such is determined by the demonstration of legitimate forensic purpose, on the basis that such was “on the cards”.  As observed by Pincus  J:

[23] When documents are subpoenaed a series of questions may arise, in a criminal or indeed a civil case. In order they are:

  1. (1)
    Whether the subpoena is invalid, for example because it is too wide. In Alister (1984) 154 CLR 404, a case about public interest privilege, the subpoena in question sought from ASIO "all files, notes and memoranda relating to or supplied by" an identified investigation over an identified period. The width of the subpoena was not the subject of adverse comment, except by Gibbs CJ (416). The Full Court of the Federal Court in Lucas Industries Ltd v Hewitt (1978) 18 ALR 555 approved a subpoena which identified documents by reference to their relevance to specific issues. More generally, it does not appear that a court will readily set aside a rather wide subpoena unless it appears to be of an oppressive character.
  1. (2)
    If there is an objection to produce documents on the ground of privilege, whether that objection should be given effect to. Alister is an example; in that case it was held that the court could inspect the documents in order to decide the validity of the claim of privilege.
  1. (3)
    Whether the parties should be permitted to inspect the subpoenaed documents. That is the issue in this case.
  1. (4)
    What use should be allowed to be made of the documents subpoenaed, or of the information contained in them. If the documents are sought to be used for the purpose of cross-examination, there are of course statutory restraints such as those in ss 20 and 21 of the Evidence Act 1977.

[24] The Rule

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.”

 More particularly, as to the approach of the primary judge, it was further observed:

“[33] Result

It seems clear that the learned primary judge, who does not appear to have had the advantage of reference to all the relevant authorities, decided the application for inspection on the basis that it was for him to be satisfied, before allowing inspection, that the subpoenaed documents were relevant to proof or disproof of the charge and not merely with respect to credit. In my respectful opinion, in proceeding on that basis his Honour erred. Use of documents or information contained in them in an attempt to discredit the principal Crown witness is a legitimate forensic purpose. It is also important to notice that the judge made the decision, by inspecting the documents himself, that they were not useful for the purpose of the defence.

[34] In my opinion the proper practice would have been first to determine whether there was a legitimate forensic purpose in requiring inspection and then, if there was such a purpose, to let them be inspected by counsel. It was held in Saleam that:

‘If no public interest immunity or other privilege is claimed (and upheld), and if a legitimate forensic purpose for their production has been demonstrated, the judge should not withhold access to the documents simply on the basis that in his view that purpose would not be satisfied in that particular case because he can see nothing in the documents which will in fact assist the accused in his defence. Provided that a legitimate forensic purpose has been demonstrated, it should be for the accused (or, in appropriate cases, for his legal advisers only) to satisfy himself on that score after his own inspection of the documents’.

This passage appears to set out a procedure which should be followed. Experience, particularly in civil cases, suggests that where documents are properly subpoenaed it is not the function of the judge or magistrate to go through them and select those which he or she thinks are relevant. 

[35] This Court has to decide whether the defence should have been allowed access to the documents. In my opinion the answer must be yes. All of the documents were of such a character as to be likely to contain information about the principal Crown witness, which might have been of use in cross-examination of him. Of course, it could have turned out that no information would have been gained, from inspection of the documents, of any substantial value to the defence; but it was for counsel for the defence, not the judge, to determine that. One disadvantage of taking the course which should have been followed is that inspection of documents by counsel can lead to some delay. I note that the Criminal Practice Rules 1999 allow subpoenas duces tecum to be made returnable before trial – see Ch 8, rr 29-35.”

  1. [47]
    It may also be noted that the legislative provisions attaching privilege to PCC and in providing for very limited overriding of that privilege, tend to directly conflict with the following further observations of Pincus J:

“[36]  Proviso

In Alister, Brennan J (as his Honour then was) remarked at 451:

‘The right of an accused person to compulsory process as of course to secure witnesses has been acknowledged for nearly three centuries. It is so basic and important an aspect of our criminal procedure that a trial in which the right is denied cannot be, in my opinion, a trial according to law. There is no distinction to be drawn in this respect between a subpoena ad testificandum and a subpoena duces tecum ...’.

It was argued on behalf of the Crown, in this Court, that –

‘... counsel for the appellant at trial was unable to particularise any matter which may have been contained within the Corrective Services Commission material under subpoena, which he relied upon as going to any particular issue of credit’.

That is hardly surprising, since counsel had seen none of the documents. It was also argued, in effect, that counsel had plenty of information, already, on which to cross-examine the complainant as to credit; the complainant had a criminal history, a psychiatric history and was a drug user. In my respectful opinion, the circumstance that other material before the Court might make the jury doubt the complainant's credibility cannot be a good reason for refusing the defence access to documents which might well add further strength to the attack on that witness.”

  1. [48]
    That has obviously occurred as a matter of legislative policy and the question which then arises is as to why it should follow that because of the more stringent test to be applied in respect of access to PCC, that it is the necessary result that the court must, or should, embark upon a process of examination of the material to determine itself whether there is material which will have forensic purpose for the applicant and that the requirements of s 14H are satisfied. Not only may such an approach be seen as having an unfortunate tendency of drawing the judicial officer into the arena, it is also necessarily ascribing a task for which that judicial officer is at a substantial disadvantage, in terms of the detailed instructions which may be expected to inform any such examination of the material by the applicant’s legal representatives. And by necessary implication, to be performed in an inquisitorial way and as is evident here, potentially not in terms of being assisted by or in determination of meaningful submissions of the parties.
  2. [49]
    The potential difficulty may be illustrated by a simple pragmatic consideration and in postulating how a judicial officer could sensibly apply s 14H(1)(b) and be satisfied that:

“other documents or evidence concerning the matters to which the communication relates are not available”;

in the absence of any knowledge and input of the parties to the substantive proceeding, as to any particular communication which is under consideration.

  1. [50]
    The question is in any event answered by the legislation, which is clear as to an effect that such inspection is not envisaged. Unlike the New South Wales provisions, the broadly applicable prohibitions in s 14F are directed at persons, subject to obtaining the leave of the court. In the first instance and as particularly relevant here, s 14F(a) is directed at parties to proceedings and prevents compulsion to produce PCC to a court “whether by subpoena or otherwise”. And as has already been noted, s14F(c) would appear to extend to prevent disclosure to or inspection and copying of PCC by the counselled person. Otherwise, s14F(b) appears to assume access to or possession of PCC and may tend to indicate that even if leave to subpoena PCC were obtained, there may remain further issues to be addressed in terms of the use of the material and particularly into evidence.[36] Notably, leave to do any of the things proscribed by s 14F requires an application pursuant to s 14G and recourse to s 14H. These provisions are directed at PCC and therefore it may be that a question arises as to whether the material in issue is PCC.  That is, where such a question arises, necessarily a separate and antecedent question to that as to whether leave is granted in respect of production of, access to or use of PCC and it is dealt with separately and discretely in s 14M.
  2. [51]
    Notably and in stark contrast to the provisions relating to obtaining leave in respect of PCC, it is only in s 14M(2) and as is made clear by s 14M(1) where such a question arises in proceedings to which  s 14D or s 14F apply, that there is an expressed power that the court “may consider a document to decide whether it is a protected counselling communication” and, as provided in s 14M(3), the court in doing so, must exclude from the courtroom all non-essential persons and may even exclude an “essential person” at the request of the counselled person.[37] And further and only in s 14M(4) and (5) and necessarily for the purpose of determination of the question to which s 14M is directed, is there any allowance of departure from the rigours of  s 14D and s 14F. These provisions are unsurprising, in that it is recognized when adjudication is required upon claims as to public interest immunity that court inspection of the documents may be appropriate as “a very useful procedure … to enable resolution of any doubts as to the legitimacy of the claim” but “not to be exercised lightly or as a matter of course”.[38]
  3. [52]
    Accordingly, it may be recognized that proper application of the legislative test in s 14H(1) may occur without any necessity to inspect the documents, by recognising the high threshold which is set for overcoming the privilege which has been given to “protected counselling communications” and the need for an applicant to identify a basis for conclusion that “a protected counselling communication … will, by itself or having regard to other documents or evidence produced or adduced by the applicant, have substantial probative value” and that the requirements of s 14H(1)(b) and (c) are also satisfied.
  4. [53]
    As was observed in Veitch (No 2) at [23], in respect of the effect of a comparable provision to s 14F:

“Although the prohibition in subs (1) bites at an early stage, its primary purpose is to prevent any person other than the persons who are party to the counselling communication having access to the contents of the document. Subsection (3) is engaged whenever a document is sought to be tendered or evidence falling within the prohibition is sought to be adduced from a witness.”

As further observed in the same decision, at [32]-[36], as to the effect of a comparable provision to s 14H(1):

[32] It follows that the first limb, requiring that the court be satisfied that the document or evidence ‘have substantial probative value’, before allowing the accused access to it, will constitute a significant reduction in the material which might be made available to the accused under the general law with respect to access to material on subpoena or through a notice to produce (or, indeed, a call for a document in the course of proceedings).

[33] The second limb, in par (b), requiring that the information or matters to which the protected confidence relates not be otherwise available, is intended to prevent access to counselling communications where relevant material is available from another source, in this case the applicant’s statements to police.

[34] The third requirement imposes an additional and significant constraint. It requires that two competing public interests be considered, with access being conditional upon the public interest in protection of confidences being ‘substantially outweighed’ by the interest in admitting the material into evidence. Significantly, the former public interest has two limbs: the first addresses the public interest in maintaining protected confidences generally, while the second relates to possible harm to the particular confider. The purpose of protecting such confidences generally is to encourage victims of sexual assault to seek professional assistance to deal with the resultant trauma. That public purpose will be undermined if confidentiality is too readily held to be overridden by other public interests, in circumstances where the court may be satisfied that the particular confider will not suffer significant harm. On the other hand, an assessment that the information has substantial probative value, in the usual case no doubt by casting doubt on the veracity or reliability of the complainant, will militate in favour of disclosure where it could give rise to a doubt as to the guilt of the accused.

[35] For the purpose of making the balance required by par (c), it appears to be assumed that the information contained in the documents will in fact be admitted into evidence in one form or another. How that assumption would operate in particular circumstances is not a matter which can be helpfully addressed in the abstract.

[36] The respondent characterised the effect of the Division as precluding access to such communications. However, that is not a fair reflection of the operation of s 299D. It should be accepted that even where the information contained in the document has substantial probative value (in the sense discussed above) and the risk of significant harm to the individual in the event of disclosure is not high, factors which favour maintaining confidentially generally may be significant. Although the balancing exercise is weighted against disclosure, that course is nevertheless permitted where the court is satisfied that the public interest in such an outcome substantially outweighs the countervailing considerations.”

Submissions to similar effect to those which were the subject of the contention addressed in the final paragraph, were made for the applicant here.  In support of the already noted contention as to the impossibility “for the Court to satisfy itself that both the first and second limbs of s 14H(1) were met, without viewing the documents sought”, it is contended that:

“17.  A separate question that arises is whether, in the absence of an express provision such as s 299B(1), the Queensland legislation requires or allows a court to consider the documents before deciding an application under s 14G. The Act is silent on that question, although:

  1. Div 2A does not prevent the court from compelling the production of protected counselling communications; and
  2. Section 14M expressly provides that a court ‘may consider a document or evidence to decide whether it is a protected counselling communication’ and may make ‘any other order it thinks fit to facilitate its consideration’.
  1. At the hearing on 26 June 2020, the court queried whether the presence of s 14M suggests a legislative intention to exclude a discretion to view and consider protected counselling communications to determine their probative value. With respect, such an interpretation would frustrate the operation of Div 2A. The legislation is designed to restrict access to protected counselling communications, not preclude access.”[39] (citations omitted)
  1. [54]
    First, it may be noted that the contention in paragraph [17a.] of those submissions is supported by reference to the decision in R v JML,[40] where reliance was placed upon s 14M(2) and (4), as the power of the Court to make an order for production of the documents in issue.  However, and what must be respectfully observed in respect of that earlier determination, is that it was made in the expressed acceptance of the submission of the “active parties” and upon the basis that the Queensland legislation was modelled on the New South Wales legislation and in adoption of what was understood to be the New South Wales Practice.[41]  However, there is no notation of any of the relevant differences in the legislative provisions, nor what is revealed on closer examination of relevant decisions, such as in Rohan, as to the difference in judicial notation as to the appropriate practices.  Further, it was expressly noted in R v JML:

“I made an order that the counselling records be produced to the Court for the purpose of considering whether such counselling records were protected counselling communications and whether leave should be granted to issue the subpoena in the terms sought.”

It is undoubtedly correct that s 14M provides discretionary powers in the first respect.  However there is no notation of any issue being considered as to the potential limitation of that power to consideration of only that first issue.

  1. [55]
    Secondly, an earlier contention accompanying the reference to the decision in R v JML and to the effect that because s 14F is directed at “a ‘person’ … it does not prevent the Court from compelling the production of such material”,[42] is not to be accepted.  Whilst s 14F(a) is directed at a person in the position of the applicant, who may seek to engage a compulsive process or direction of a Court, whether by subpoena or otherwise, s 14F(b) is directed at a person who is in possession of the PCC and prevents the production of such a material by such a person “to a Court”, without a grant of leave having regard to s 14H. 
  2. [56]
    Thirdly, and whilst it is obviously necessary to have regard to the legislative purpose of Division 2A and to preferably adopt a purposive approach to the interpretation of the provisions,[43] such an approach is of no avail to the applicant’s contentions.  The expressly limited operation of s 14M does not frustrate the operation of Division 2A.  It is clear that the primary purpose of Division 2A is to restrict the use of PCC in court proceedings. That purpose is achieved in the first instance by the statutory acknowledgement of the privileged nature of such communications, and secondly, by allowing for qualification of that privilege in circumstances to which s 14F applies.  However, the qualification is extremely limited and based upon the considerations set out in s 14H, which, as has been noted in respect of similar considerations applicable under the New South Wales legislation, are weighted against disclosure but which is ultimately permitted, where a court is satisfied that the public interest in admitting the communication into evidence substantially outweighs the competing public interest in preserving the confidentiality of the communication and protection of the counselled person from harm.
  3. [57]
    It may immediately be noted that there is some sense of elision of concepts in the balance to be achieved. The public interest in favour of maintenance of the privilege is expressed in terms of maintenance of confidentiality and protection of the counselled person from harm. As is then further informed by the assumptions set out in s 14H(2)(a)-(d) and (f), this aspect of public interest is necessarily to be taken into account as favouring the restriction directed at access to such communications. However, the competing public interest is directed at the end use of such communications by admission into evidence, as is particularly informed by the requirement in s 14H(2)(g) that the court have regard to “the extent to which the communication is necessary to enable the accused person to make a full defence”.[44]
  4. [58]
    Consequently, it may be discerned that s 14F is couched in terms designed to prevent, without leave, access to such communications, as well as any use of such communications, including by adduction into evidence. As has already been noted, and whilst they may not be so limited in operation, those provisions are apt to cover any situation where there is knowledge of, or in the case of the documentary form of PCC, possession of some such document. The problem lies in the elision of what may usually be regarded as discreet concepts, or separate practical steps, involved in access to, use of information falling short of adduction into evidence and such adduction of the information, under the rubric of a singular balancing exercise or test.
  5. [59]
    Understandably, in submissions for the applicant, attention is drawn to the inclusion of s 14H(2)(g) “in the context of contrasting that there is no such equivalent provisions to be found in s 299D(1) or (2) of the CP Act”, but that does not lead to the contended suggestion or conclusion that “under the Queensland Legislation, the accused’s ability to make a full defence has greater significance when balancing the competing public interest considerations”.[45] In the first instance, there is some difficulty in discerning how this inclusion relevantly informs, or adds to any understanding of, the public interest in admission of a communication into evidence, other than by what is necessarily inherent in the other necessary and logically antecedent, determinations pursuant to s 14H(1)(a) and (b): that the PCC will by itself or in conjunction with other evidence, have substantial probative value and that other documents or evidence concerning the matters to which the PCC relates are not available. Further, no such implication is to be gleaned from the reference made to the following passage from Veitch (No 2):[46]

The third requirement imposes an additional and significant constraint. It requires that two competing public interests be considered, with access being conditional upon the public interest in protection of confidences being “substantially outweighed” by the interest in admitting the material into evidence. Significantly, the former public interest has two limbs: the first addresses the public interest in maintaining protected confidences generally, while the second relates to possible harm to the particular confider. The purpose of protecting such confidences generally is to encourage victims of sexual assault to seek professional assistance to deal with the resultant trauma. That public purpose will be undermined if confidentiality is too readily held to be overridden by other public interests, in circumstances where the court may be satisfied that the particular confider will not suffer significant harm. On the other hand, an assessment that the information has substantial probative value, in the usual case no doubt by casting doubt on the veracity or reliability of the complainant, will militate in favour of disclosure where it could give rise to a doubt as to the guilt of the accused.”

Other issues

  1. [60]
    Despite there being no contested points taken and therefore no necessity for determination of them, it is appropriate to note two further and interrelated issues, which were the subject of some submissions in this matter. The first relates to the neutral and largely inactive position taken by the prosecution in the matter, effectively leaving it to the counselled person to be the contradictor of the application, including in respect of all of the issues arising under s 14H, notwithstanding that it was apparent that in addressing those arising under s 14H(1)(a) and (b), reliance was necessarily placed upon information which had to be supplied or communicated by the prosecutor. It may immediately be observed that this prosecution stance, which is commonly encountered as an apparent policy in respect of such applications, is not only an unfortunately unhelpful one but also difficult to reconcile with the legislative scheme and may be seen as linked to the second issue, being a query which arises as to the role that is ascribed for the counselled person in that scheme.
  2. [61]
    It is convenient to commence with the second issue, by noting that s 14L provides:

“14L Standing of counsellor and counselled person

(1) This section applies if—

  1. (a)
    a counselled person or counsellor is not a party to a proceeding to which subdivision 2 or 3 applies; and
  1. (b)
    the court is deciding whether a document or evidence relating to the counselled person or counsellor is a protected counselling communication.
  1. (2)
    The counselled person or counsellor may appear in the proceeding, including any appeal.”
  1. [62]
    As has been noted, subdivision 2 applies to circumstances where the privilege is absolute and s 14H does not apply, and the only question which may arise is as to whether the privilege is applicable. However, subdivision 3 applies only as follows:

“14E Application of subdivision

This subdivision applies to a proceeding—

  1. (a)
     for the trial or sentencing of a person for an offence, other than a proceeding to which subdivision 2 applies; or

(b) relating to a domestic violence order under the Domestic and Family Violence Protection Act 2012.”

Whilst it may be difficult to see how a counsellor might ever be a party to any such proceeding, except perhaps as a defendant, it can be readily seen that a counselled person might be a party to proceedings under the Domestic and Family Violence Protection Act 2012 (Qld). And that consideration may tend to explain the formulation in s 14L(1)(a).

  1. [63]
    The qualified operation of the privilege in respect of the types of proceeding referred to in s 14E, is provided by s 14F:

“14F Sexual assault counselling privilege

A person cannot 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.”

Proceeding is relevantly defined in paragraph (b) of the definition in Schedule 3 of the Evidence Act, as follows:

“Proceeding

  1. (a)
    for part 2, division 4A—see section 21AC; or
  1. (b)
    otherwise—means any civil, criminal or other proceeding or inquiry, reference or examination in which by law or by consent of parties evidence is or may be given, and includes an arbitration.”

Otherwise, it may be noted that s 14G allows for leave applications by “a party to the proceeding” and except where they may be parties to “the proceeding” and as occurred in this case, the notification requirements in respect of the counsellor, pursuant to s 14G(2)(b), and the counselled person, pursuant to s14G(4), are engaged.

  1. [64]
    It is clear that there is a distinction to be drawn between a proceeding in which an issue as to access to or use of PCC arises and the application which may be made in respect of that issue. It may be accepted, as the counselled person contends here, that this is an application made “in a proceeding for the trial” of the applicant upon the indictment before the court.[47] Such an application is expressly permitted for the purpose of pre-trial ruling, by s 590AA(2)(ka).
  2. [65]
    Further, it is not to the point that such an application may itself be regarded as a proceeding. This is because these provisions operate upon the basis that there is an existent proceeding in relation to which issues in respect of the PCC arise and proceed to provide for the standing or appearance of “a counselled person or counsellor” who “is not a party to [that] proceeding”.
  3. [66]
    However and as reference to s 14L demonstrates, that appears to be an expressly limited standing or right of appearance, having regard to the conditional operation of that section to circumstances where “the court is deciding whether a document or evidence relating to the counselled person or counsellor is a protected counselling communication”. This condition, as expressed in s 14L(1)(b), is redolent of the language used in s 14M(2) and which has been noted as directed at a distinct and separate question to that which arises in reference to the granting of leave in respect of access to or use of material that “is a protected counselling communication”. That limitation may be further exemplified by reference to s 14H, which, in the context of s 14L, only expressly allows, in deciding the leave question, for the making and consideration by the Court, of a statement of harm by the counselled person.
  4. [67]
    Further, what appears to be the design of these legislative provisions is also understandable in recognition of not only the severability of the questions which may respectively be addressed pursuant to s 14M and s 14H, but also the distinction as to the onus of persuasion in respect of these distinct questions.
  5. [68]
    Accordingly, it may be difficult to reconcile these provisions with the common position of the applicant and the counselled person in this matter, to the effect that the counselled person was entitled to be heard as to the application of s 14H and in deciding the leave question, quite apart from having the court consider the statement of harm, which was provided in written form. However and because of that common position and the absence of any meaningful input from the prosecution, it is unnecessary to determine the issue, in this instance, or to in any way ignore the contribution of the counselled person in respect of the issues arising under s 14H.
  6. [69]
    However, what has just been observed does tend to bring the commonly taken stance of the prosecution in such matters, into sharp focus.
  7. [70]
    Notably, in each instance where the specific interest of the counselled person is addressed, there are express provisions for exclusion of persons from the court: in s 14M(3) and s 14H(4)-(5). That may extend to exclusion of “essential persons”, a concept defined to include “the prosecutor”. An accused person is not per-se an essential person, but might conceivably be determined to be so, in particular instances, pursuant to either of the following aspects of the definition of “essential person”:  

“(e) a person whose presence is, in the court’s opinion, necessary or desirable for the proper conduct of the proceeding;

(f) a person who applies to the court to be present and whose presence, in the court’s opinion—

  1. (i)
    would serve a proper interest of the person; and
  1. (ii)
    would not be prejudicial to a counselled person’s interests.”
  1. [71]
    Although in Rohan at [72], there was notation that it was commonly the case that the prosecution remained neutral in the context of the standing and availability of legal representation for the “protected confider”, that is to be noted in the context of the breadth of operation of s 299A as to the standing granted to a “protected confider” and which may be contrasted with the apparently more limited standing given to the counselled person in the Queensland provisions.
  2. [72]
    Quite apart from those expressed limitations, it can be observed that the position of the counselled person in respect of providing assistance in respect of the matters to be addressed under s 14H(1)(a) and (b) is likely to be substantially inferior to that of the prosecution and to be largely, if not entirely, dependant on information provided by the prosecution. It must also be observed that whilst the considerations to be addressed under s14H introduce matters relating to the interests of the counselled person, the objective of the balancing exercise remains directed at the interests of justice in the proceeding to which the prosecutorial functions and duties are directed.
  3. [73]
    Also the type of balancing exercise in respect of matters of public interest required by s 14H(1)(c)  is not foreign to experience of prosecution input, such as where it is necessary to consider applications for the discretionary exclusion of evidence on what has been recognized as public policy grounds.[48] And it may be that the legislation otherwise provides for the particular interest which the counselled person has in that regard and apart from the maintenance of the claim of privilege, in s 14H(3)-(8):

“(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—
  • (a) anyone who is not an essential person; and
  • (b) an essential person, if—
  1. (i)
    the counselled person asks that the essential person be excluded; and

(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.”

It may be seen that  information provided pursuant to s 14H(3) or (4) will necessarily inform the weight which is required to be given to the public interest in protecting the counselled person from harm, pursuant to s 14H(1)(c)(ii). The requirement in s 14H(1)(c)(i) to have regard to the public interest in preserving the confidentiality of the communication, may be seen as essentially informed by the stated statutory assumptions set out in s 14H(2)(a)-(d) and (f).

  1. [74]
    Accordingly, it may be seen that the issues which may be more contestable and critical to determination of the leave issue are those which may arise under s 14H(1)(a) and (b). In my respectful view, it is difficult to see these otherwise than as issues which by their nature and context in the proceedings for which the leave is sought, are germane to the prosecutorial function in the proceedings. Moreover, it may readily be discerned that the prosecutor may be expected to be more aptly placed to provide the necessary assistance in respect of determination of these issues and more generally, as to the balancing exercise to be undertaken pursuant to s 14H. Whilst it is an aspect of that exercise that the Court may consider material which is not to be disclosed to either of the parties, in the form of the counselled person’s statement of harm, that is only for the purpose of informing, in each case, the necessity to consider the public interest in protection of the counselled person from harm. And by express statutory prescription, the prosecutor is, in that respect, in no different position to the defendant.
  2. [75]
    It must respectfully be observed that it is difficult to understand, in these circumstances, why an expressly acknowledged party to the proceeding, both in respect of the application and the proceeding in which it is made, and unlike the approach to any other type of pre-trial hearing which may be brought pursuant s 590AA of the Criminal Code, approaches these applications by adoption, as an apparent matter of policy, of a neutral and largely non-active role. More particularly and from the perspective of the Court, and in my respectful view, this may be seen as an inapt and unhelpful approach and deserving of reconsideration.

Conclusions

  1. [76]
    Essentially, it is clear that the substantial premise of this application is that, upon it having been made, there is engagement of an obligation on the Court to obtain and consider the documents which are within the purview of the application, in order to consider whether and to what extent there is PCC contained in those documents and to trawl them for such information as would satisfy the requirements of s 14H.
  2. [77]
    In my view, not only is that an untenable contention as to the function of the Court from a general perspective, absent legislative warrant for it, but there is no such warrant to be discerned from the evident purpose or effect of these legislative provisions.  And neither can such proposition be seen as consistent with the fact that this is an application for leave to engage a compulsory process of the Court, by subpoenaing the documents in issue.
  3. [78]
    There can be no argument with the proposition that the legislation is intended to implement a policy of favouring the identified interests of complainants who are counselled persons, over those of an accused person or defendant.  Whilst there is allowance of a balancing exercise to be performed, in appropriate cases, there is no warrant for an approach which seeks that the strictures of the scheme be ameliorated by an expectation that a court will nevertheless trawl through any documents which are simply made the basis of such an application. As has been noted above, no such expectation is recognised in respect of records to which subpoenae may be generally directed and it is not apparent as to why the introduction of the more stringent requirements of this legislative scheme should be seen as demanding such a consequence.
  4. [79]
    Moreover, it is evident that no such outcome is contemplated in the legislation.  It is clear that only in respect of determination as to whether there is a valid claim of privilege is there, in s 14M, any recognition of the possibility that the court may consider such a document or evidence.  And further it is only in that limited context that there are ancillary provisions which allow for that to occur, contrary to the primary prohibitions set out in s 14E and s 14F.
  5. [80]
    As was noted by Beech-Jones J in Veitch (No 2) at [86], such legislative schemes are operable upon the basis of identification of what an applicant expects will be obtained from the material to which the application is directed.  Despite the requirement in s 14H(1)(a) that the court be satisfied that a relevant PCC “will” have the requisite substantial probative value in evidence, as a matter of ordinary principle this means only that there is an onus on an applicant to demonstrate such a conclusion, on the balance of probabilities.  And the strictures of the prohibitions which apply and particularly where there may be little by way of information available to a defendant to inform any such expectation, are not to be diminished by such contentions. Whilst it may be right to recognise a role or obligation of a court to ensure, as far as is possible, a fair trial of any defendant, that is achieved by application of the law and not by seeking to circumvent any law which may be viewed as tending to impinge on that objective.
  6. [81]
    In that respect it is not difficult to have some concern for the position of the applicant here, in being placed in a position of being denied what, as a matter of some past experience, has been demonstrated as fertile sources of material which might be used to impeach the credibility of complainants, whether or not any of the material actually ends up adduced in evidence.  However, past experience would also indicate that such is not a universal outcome of such enquiries and there is a clear implementation of a legislative policy which is designed to substantially, if not severely, restrict the access of any defendant to such material.
  7. [82]
    In circumstances where the statutory privilege only attaches to the communications in the context of and for the purpose of certain specified types of court proceedings and where s 14F applies, only upon a qualified basis, it is evident that a balance is sought to be achieved as to the competing considerations. In particular, it may be seen that the emphasis upon restriction of any access to PCC is largely driven by the considerations which appear to inform the generalized assumptions to which regard is required by s 14H(2)(a)–(d) and (f), regardless of how contestable any such assumption may be in any particular case. As has been noted above and in respect of what is otherwise presented as the competing considerations having regard also to the interest of securing a fair trial for a defendant, is the particular difficulty in the apparent disjunct in the balance which is sought to be implemented in s 14H. Except in circumstances where an applicant (which may be the prosecutor as well as a defendant) otherwise has access to PCC or has knowledge of what may be expected to be produced or adduced in evidence as PCC, it is apparent that the balance, as it is presently struck, may well be largely illusory.
  8. [83]
    The apparent problem lies in the equation of the test for use of the PCC with that for any access to such material. Particularly where it is in the use of the material where the ultimate balance between the competing considerations is sought to be resolved, it may be observed to be desirable for some further consideration of the policy sought to be implemented, so that there might be some greater allowance for inspection of material which is sought by an applicant (at least by legal advisers and the prosecution), so as to allow for meaningful applications to be made as to appropriate use of material which satisfies the test in s 14H and achieves the sense of legislative balance which is directed at the interests of a defendant, as well as that of the counselled person and more importantly, of the community in securing a fair trial of accused persons. And so much appears to be consistent with the intent underlying the provisions in s 14N and in allowance of ancillary orders by the Court, being powers which are directed at what appears to be the more critical concern of amelioration of potential harm to counselled persons by the production and use of PCC.
  9. [84]
    However and in determination of this application, the problem remains that it is substantially addressed at what has been determined to be a false premise as to how this legislative scheme is to be appropriately implemented and essentially in what appears to be a common misconception as to the role of the Court in respect of such applications. And it emerges that this misconception also underpins the insistence in the further submissions for the applicant that the issue as to whether the Documents are PCC is not “conced[ed] …. absolutely”.[49]
  10. [85]
    As has been noted, the obvious objective of this application as it is expressly made is in obtaining access to PCC. There is nothing to suggest that there is any issue as to the application of the privilege claimed by the counselled person or to raise the prospect of the Court considering the documents for the purpose of applying s 14M. As appeared to be correctly observed for the counselled person, at the hearing on 26 June 2020, there did not appear to be any issue taken or raised in this regard.[50] And the refusal to finally concede this point is not only difficult to reconcile with the application which is actually made but also has the appearance of a thinly veiled attempt to hold onto the prospect of court inspection of the Documents, in the hope of some identification of material to which s 14H might be applied, without due regard to the discrete issues which are involved.
  11. [86]
    Similarly, it was not understood that the application was actually pressed upon the basis of any expectation that the Documents contain “[a]ny diagnosis, observations, or admissions that indicate the complainant is not a truthful person”. That is, neither as to whether any such information is within the definition of PCC or as to leave for access to any such information. It may be observed to be another factor in support of the observations as to reconsideration of the balance to be implemented pursuant to s 14H, that it could hardly be thought to be intended nor an appropriate balance, to deny the ability to access and contend for the use of material of a kind which goes to the reliability of a witness and of a kind which might provide a basis for the type of direction or warning recognized in Bromley v R.[51]
  12. [87]
    In summary and particularly as the application was focussed, it was directed at description of types of material which could be the subject of consideration under s 14H, rather than identification of any expectation that there is, in the Documents, any expectation that there is any material which will relevantly have substantial probative value, let alone satisfy the remaining requirements of s 14H. Accordingly, the only appropriate order is to dismiss this application.

Footnotes

[1]  See the headings for Div 2A, s 14D and s 14F.

[2]  Pursuant to s 14P if the privilege has application to any of these types of proceeding, it continues to have application in any civil proceeding “arising from the act or omission to which [the earlier proceeding] relates”.

[3]  See Exhibit 2, tendered 22/5/20.

[4]  The latter is permitted pursuant to s 14H(3).

[5]  Eg: such issues as may and not uncommonly, arise pursuant to Part 6 of Chapter 6 of the Child Protection Act 1999 and Part 5A of the Domestic and Family Violence Protection Act 2012.

[6]  See the Explanatory Notes to the Victims of Crime Assistance and Other Legislation Amendment Bill 2016 and R v JML [2019] QDCPR 23 at [37].

[7]  (2012) 84 NSWLR 172.

[8]  [2018] NSWCCA 89.

[9] [2013] NSWCCA 25, [4]-[5].

[10]  See footnote 6, above.

[11]  Applicant’s Written Outline of Submissions, filed 15/6/20, at [55].

[12]   See paragraph [38].

[13]  [2015] NSWCCA 230.

[14]  See paragraph [16], above.

[15]  Counselled Person’s Written Outline of Submissions, filed 22/6/20, at [4]-[5].

[16]  Applicant’s Written Outline of Submissions, filed 15/6/20, at [44].

[17]  Ibid at [49].

[18]  Applicant’s Addendum Written Outline of Submissions, filed 10/08/20, at [4].

[19]  Counselled Person’s Addendum Written Submissions, filed 8/7/20, at [7].

[20]  Counselled Person’s Addendum Written Submissions, filed 8/7/20, at [34]. 

[21]  [2019] QDCPR 23.

[22]  See Applicant’s Written Outline of Submissions, filed 15/6/20, at [38], which is supported (in fn 24) by reference to s 14B(1)(a) and (b) of the Acts Interpretation Act 1954 (Qld) . 

[23]  Applicant’s Written Outline of Submissions, filed 15/6/20, at [40]-[43].

[24]         Applicant’s Addendum Written Outline of Submissions, filed 10/08/20, at [20]-[21].

[25]  Applicant’s Written Outline of Submissions, filed 15/06/20, at [50]-[51].

[26]  Counselled Person’s Written Outline of Submissions, filed 22/6/20, at [23].

[27]  [2019] QDCPR 23, at [46]-[57].

[28]  See paragraph [39], above.

[29] Briginshaw v Briginshaw (1938) 60 CLR 336, at 361-362; and cf:  Leigh v Bruder Expedition Pty Ltd [2020] QCA 246.

[30]  Prosecution Written Submissions, filed 13/7/20, at [2].

[31]          Counselled Person’s Written Outline of Submissions, filed 22/6/20, at [6]-[7].

[32]  See Addendum Outline of Submissions on behalf of the Respondent, filed 08/07/2020, at [35], with express reference to Rohan.

[33]  Ibid at [33].

[34]  Applicant’s Addendum Written Outline of Submissions, filed 10/08/2020, at [20]-[21]. 

[35]  [2000] QCA 469, at [2]-[8], per de Jersey CJ and [23]-[24] and [30]-[35], per Pincus J.

[36]  Cf: R v Stylianou [2018] NSWCCA 300.

[37]  It may be noted that some further indicia of the problematic nature of the provisions in Division 2A be noted in that there is a definition of “essential person” provided in s 14B, only for the purposes of s 14M(3), and which whilst not including express reference to an applicant or defendant, might allow for determination that such person and/or his or her legal representative is an essential person, on the basis of presence being necessary for the proper conduct of the proceeding, only to then have a conflicting contention from a counselled person, pursuant to s 14M(3)(b)(ii), to exclude the person on the basis of serving a proper interest of the counselled person.

[38]  See Cross on Evidence at [27165].

[39]         Applicant’s Addendum Written Outline of Submissions, filed 10/08/2020, [17]-[18].

[40]  [2019] QDCPR 23.

[41]  Ibid at [28], [29] and [37].

[42]  Applicant’s Written Outline of Submissions, filed 15/6/20, at [37].

[43] Acts Interpretation Act 1954 (Qld), s 14A.

[44]  It is unnecessary for present purposes to dwell on what may be appropriately encompassed by the amorphous expression in s 14H(2)(h); “any other matter the court considers relevant”.

[45]  Applicant’s Addendum Written Submissions, filed 10/08/20, at [23].

[46]  (2012) 84 NSWLR 172, at [34].

[47]  Counselled Person’s Addendum Written Submissions, filed 8/7/20, at [10].

[48]   As recognized in cases such as Bunning v Cross (1978) 141 CLR 54; and R v Swaffield (1998) 192 CLR 159.

[49]  Counselled Person’s Addendum Written Submissions, filed 8/7/20, at [4].

[50]  Counselled Person’s Addendum Written Submissions, filed 8/7/20, at [17].

[51]  (1986) 161 CLR 315.

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Editorial Notes

  • Published Case Name:

    R v CDJ

  • Shortened Case Name:

    R v CDJ

  • MNC:

    [2020] QDCPR 115

  • Court:

    QDCPR

  • Judge(s):

    Long SC, DCJ

  • Date:

    19 Nov 2020

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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