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R v MFJ[2021] QCHC 34

CHILDRENS COURT OF QUEENSLAND

CITATION:

R v MFJ [2021] QChC 34

PARTIES:

THE QUEEN

(respondent)

v

MFJ

(applicant)

FILE NO:

396/20

DIVISION:

Criminal

PROCEEDING:

Applications for leave pursuant to s 14G of the Evidence Act 1977 (Qld) 

ORIGINATING COURT:

Children’s Court at Brisbane

DELIVERED ON:

9 September 2021

DELIVERED AT:

Brisbane

HEARING DATE:

16 August 2021

JUDGE:

Judge Clare SC

ORDER:

  1. The application for the production of the records of Child Psych and Umbrella Lane Psychology is dismissed.
  2. The application for leave to access the records of Child Psych and Umbrella Lane Psychology is dismissed.
  3. Pursuant to s 14M of the Evidence Act 1977 (Qld) the Department of Education is to produce its records for the period from 1 June 2019 to the present relating to the complainant (named in count  3 of the indictment number 396/20). 
  1. those records are to be kept in an envelope and not to be accessed by anyone other than the representatives of the complainant pursuant to s 14M(4) pending a determination of what is PCC. 
  2. the representatives of the complainant may access and copy the records for the purpose of making submissions on what portions are PCC.
  3. the hearing of the defence application for leave to access PCC in those records is adjourned.
  1. The application in respect of the Department of Education records is adjourned to a date to be fixed.

CATCHWORDS:

CRIMINAL LAW – SEXUAL ASSAULT – SUBPOENAED MATERIAL – APPLICATION FOR ACCESS TO MATERIAL – PRIVILEGED COUNSELLING COMMUNICATION – where the applicant seeks leave to subpoena the complainant’s psychological records – where the applicant wishes to subpoena the complainant’s school records – when records may be produced without leave – when court may order production of documents without giving leave – standing of the counselled person.

LEGISLATION:

Criminal Code Act 1899 (Qld) s 590

Criminal Practice Rules 1999 (Qld) r 30

Criminal Procedure Act 1986 (NSW) s 299D

Director of Public Prosecutions Act 1984 (Qld)

Evidence (Miscellaneous Provisions) Act 1958 (Vic) s 32

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

CASES:

Bromley v The Queen (1986) 161 CLR 315

Farrell v The Queen (1998) 194 CLR 286

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

R v Demos [2012] QCA 165

R v JML [2019] QDCPR 23

R v Rohan [2018] NSWCA 89

COUNSEL:

Ms E Kelly for the Crown

Ms C Lovel for the applicant

SOLICITORS:

Office of the Director of Public Prosecutions for the Crown

Legal Aid Queensland for the applicant

Introduction

  1. [1]
    The applicant is charged with rape and other charges.  An application was made with the co-accused for access to the records relating to the complainant held by the complainant’s general practitioner, Dr Young, as well as those held by psychology practices, Umbrella Lane Psychology and Child Psych, along with records of the Education Department. The co-accused subsequently pleaded guilty to the indictment.
  2. [2]
    Subdivision 3 of Subdivision 2A of the Evidence Act 1977 (Qld) (‘the Act’) creates a qualified privilege for Protected Counselling Communication (‘PCC’).  The privilege continues unless removed or moderated by court order. An order to produce the records of Dr Young was made under s 14M(4) of the Act for the purpose of identifying what part, if any, of those records were PCC.  Submissions were received from Mr Morgans for the counselled person in the absence of the parties, and a finding was made as to the existence of PCC.   A ruling in open court allowed the parties to inspect and copy all of Dr Young’s records, apart from the identified privilege.  On 17 May 2021 I refused the application for leave to access the protected portions.
  3. [3]
    The records of the two psychology practices and the Education Department are not before the court.  Originally, the issue of whether those records constituted PCC did not require determination because:
  • Both applicants accepted the psychologist’s records were PCC; and
  • While the records of the Education Department were obviously more diverse, the applicants frankly conceded that their interest in the school records was only in any PCC.
  1. [4]
    Because there was no issue about their classification, no preliminary order for production was made in respect of those records.  The applicant’s position has since shifted.  Firstly, his counsel now seeks access to all the Education Department Records, not just protected communication.  Secondly, the concession in relation to the psychological records has been modified by a submission that the records might also contain relevant information that is not PCC.  Ms Lovel contends the court should now:
  1. consider all of the records to determine those parts which are protected communication; and
  2. give the applicant leave to inspect and copy the complete records, including the PCC.
  1. [5]
    At present, there are no submissions to the contrary.  Although Crown Prosecutors appear on the record for all applications for leave to access the counselling records of their witnesses, I have not known any prosecutor to make submissions.  They appear indifferent to the outcome.  It is perplexing because the question of leave concerns the relevance of evidence, the public interest, and the fairness of the trial they are prosecuting.  Traditionally those matters have been considered essential considerations for an independent prosecutor.  Prosecutors complying with the Director’s Guidelines would make such assessments daily.

Standing

  1. [6]
    I understand there are cases where counselled persons have been heard on the substantive issues of the application for leave.  I do not identify any statutory authority to hear such submissions in the case before me.
  2. [7]
    The crown prosecutor is instructed by the Director of Public Prosecutions. The Director of Public Prosecutions is the independent office created by parliament to prosecute alleged offences against the law of Queensland.  In carrying out that function, the Director and his or her officers act on behalf of the Crown in right of the State of Queensland.  A criminal trial is between the Crown and the accused person[1]. The counselled person (usually the complainant) is not a party. The exception would be a private prosecution.  A private prosecution cannot commence without leave of the Supreme Court.[2] The present indictment was presented to the court by a crown prosecutor pursuant to s 590 of the Criminal Code Act 1899 (Qld).  Therefore, this is not a private prosecution. 
  3. [8]
    Under the general law, only parties to the proceedings have a right to be heard.  Parliament may enact exceptions.  Section 14L of the Act is an example.  It declares that counsellor and the counselled person have standing to appear “if…the court is deciding whether a document or evidence …is a protected counselling communication”.[3]  Accordingly, the counselled person may appear when the court is deciding whether the material is, or is not, PCC.
  4. [9]
    There is no equivalent provision to extend standing to the consideration of whether the privilege should be relaxed.  In fact, beyond s 14L, the only express authority for the direct involvement of the counselled person concerns a waiver of the privilege or a written or oral statement of harm[4]. The statement of harm is relevant to the court’s consideration of the public interest.   
  5. [10]
    While the counselled person would otherwise be a beneficiary of the privilege, there are important policy reasons why Parliament would not confer standing for the whole application.  Prosecutorial independence is one of the pillars of our criminal justice system.  The substantive application for leave is under s 14 H.  It  focuses on the relevance and weight of evidence and the defence case, as well as the balance of public interest.  Assessments of that nature are an integral part of prosecuting.  On the other hand, the counselled person is not best placed to make objective submissions on the broader public interest.   Moreover, the counselled person is likely to be a key witness in the trial.  A process which encouraged the complainant to participate in a forensic analysis of the whole case prior to testifying would be fraught with risk.
  6. [11]
    In the present matter, the complainant has engaged her own counsel, Mr Morgans.  He will be given the opportunity to make submissions if, or when, the question of PCC is under consideration.
  7. [12]
    The sexual assault counselling privilege in Division 2A of the Act has yet to be considered by an appellate court.  This judgement outlines my interpretation of the statutory regime.

Power to order the production of documents

  1. [13]
    Subdivision 2 of Division 2A of the Act deals with committal and bail proceedings.  For those matters, the sexual assault counselling privilege is unqualified.  Subdivision 3 of the Act concerns PCC for other criminal proceedings (proceedings for trials or sentences).  For the subdivision 3 cases, the privilege operates to exclude access to the PCC unless leave is given.  Relevantly, within Subdivision 3:
  1. Section 14F prohibits a person from subpoenaing, producing, inspecting or copying PCC without leave of the court; and
  2. The power of the court to grant leave is tightly prescribed.  The court ‘cannot grant an application for leave’ under Subdivision 3 unless it is satisfied of the three limbs to s 14H(1). 
  1. [14]
    In the absence of appellate authority to the contrary, I read that express confinement of the court’s power to make orders in relation to production and use of known PCC to be unequivocal.  No exception for known PCC is made in either subdivision 3 or elsewhere in Division 2A of the Act.  While there is specific provision for consideration of a document or evidence which may be PCC, such consideration is expressly for the purpose of deciding the threshold issue of whether the document is PCC.  The division makes some distinction between the process for determining the existence of PCC, and the process for identified PCC. 

Order for production under s 14 M and subdivision 5

  1. [15]
    Division 2A incorporates particular procedures.   They are set out in Subdivision 3 (ss 14G and 14H) and Subdivision 5, but not in Subdivision 2. The absence of procedure in Subdivision 2 is explained by Subdivision 5.  All the provisions of Subdivision 5 have express application to proceedings generally, whether under Subdivision 2 or 3.  The issue common to both Subdivision 2 and Subdivision 3 is whether the material is PCC.  Further, that is the only issue in relation to Subdivision 2 (because the privilege is absolute).  It would follow that all the procedures and powers generally conferred under Subdivision 5 have application to that threshold determination of whether the material is PCC.[5]  Such conclusion is confirmed by the express language of the text. On the other hand, there is no apparent attempt to extend the procedures and powers of Subdivision 5 to the ultimate determination of an application for leave under s 14 H(1).  Subdivision 3 lays down its own procedures specific for the application for leave. 
  2. [16]
    The argument for the production of PCC without leave hinges on s 14M in Subdivision 5.  Section 14 M is specifically directed to the process of deciding whether the material is PCC. The section commences in this way:

14M - Deciding whether document or evidence is PC

  1. [17]
    Section 14M goes on to provide:
  • “The court may consider a document or evidence to decide whether it is a protected counselling communication”.[6]
  • While the court is considering the material, the court must be closed and the court has power to exclude the parties.[7]
  • The court may make any other order it thinks fit “to facilitate its consideration of the document or evidence”;[8] and
  • Section 14M “applies despite …s 14F”.[9]
  1. [18]
    On its face, s 14M is a carefully drafted exception to s 14F. Only s 14M(2) purports to confer authority to consider a document. That authority is narrowly fixed to the threshold issue of deciding whether the document is PCC. If the material is PCC, Subdivision 3 will apply,[10] including ss 14F and 14H.  Section 14F prohibits the production of such a document, without leave.  The court cannot give leave without being satisfied of all three matters in s 14H(1).  That no exception was intended is confirmed by the omission of any provision like s 14M to authorise consideration of the PCC for deciding the issues in s 14H.
  2. [19]
    If there could be any doubt, it is put to rest by comparing the legislation on which s 14M was modelled and the Queensland parliament’s deviation from it. The Explanatory Notes[11] identify that Division 2A is modelled on the NSW legislative regime.[12] The NSW equivalent of s 14M is s 299B of the Criminal Procedure Act 1986 (NSW).  Although the sections are not identical, they both offer the court preliminary access to the document.  They are comparable in form and text, but for the critical exception as to the circumstances in which a court might consider the document.[13]
  3. [20]
    The NSW provision applies to any question under the division (notwithstanding the heading).  Relevantly:

229B Determining if there is a protected confidence

  1. (1)
    If a question arises under this Division relating to a document or evidence, a court may consider the document or evidence.[14]
  1. [21]
    In contrast, the provision subsequently enacted in Queensland qualifies the use that could be made of the document, by the addition of subsection (2).

S14M Deciding whether document or evidence is PCC

  1. (1)
    This section applies if a question arises under this division in relation to a proceeding to which subdivision 2 (committal proceedings) or 3 (general) applies.
  1. (2)
    The court may consider a document or evidence to decide whether it is a PCC…
  1. [22]
    Subdivision 5 does provide for ancillary orders, but they are narrow in scope.  The court’s power to make others orders in s 14M(4) to “facilitate its consideration” of the document is again tied to consideration of the threshold issue, because the actual authority to consider the document is that conferred by s 14M(2).  Facilitative orders might include an order to produce a document or to grant access to it for the purpose of making submissions about whether the communication was PCC, but they could not extend to ordering the production of known PCC .   Similarly, s 14N permits ancillary orders, but s 14N would not authorise the production or consideration of PCC.  It is fixed at limiting the harm to be caused to the counselled person when PCC is produced. 
  2. [23]
    As for the procedures under Subdivision 3, there are requirements for notice to the counselled person, but no equivalent to s 14L to extend standing for the substantive matters in subdivision 3.  Instead of a statutory right to appear, the counselled person may offer a statement of harm under s 14H(3).  Furthermore, there is the absence of any provision for consideration of the document when determining whether leave may be given.
  3. [24]
    For those reasons, I have concluded that where the material sought is known to be PCC, the court has no power to order its production without being satisfied of all of the requirements for leave in s 14H.

Are the psychologists’ records PCC?

  1. [25]
    The ambit of “protected counselling communication” is very wide.  By virtue of s 14A it includes any communication in confidence between counsellor and counselled person, or a confidential communication by a parent or support person present to facilitate communication with the counsellor or further the counselling process.  Pursuant to the definitions in s 14B, a “counselled person” is an alleged victim of an alleged sexual assault who has been counselled by a counsellor (at any time); a “counsellor” includes a person who has trained or has experience in counselling and in the course of his or employment, counsels another person; “counsel” means to listen to, and give support, help or encouragement to another, or to advise or give therapy to the person.  Applying those definitions, those providing counselling services in the psychology practices of Umbrella Lane and Child Psych would be “counsellors” and any one of their clients who was an alleged sexual assault victim at any time, would be a “counselled person.”.  It follows, the complainant who had engaged with those counselling services, was a counselled person.  Confidentiality is an important part of such services. The ambit of PCC extends beyond the session notes to communication in furtherance of the process.  There is no reason to infer an absence of confidentiality in any communications between the complainant and her counsellors, or in any communications between her parent or carer and the counsellor to assist the counselling process.  It follows that almost the whole of the file, and certainly the contents of substance, would be PCC. 
  2. [26]
    There is then no need to consider the psychologists’ records to classify them. As initially conceded by the defence, the PCC is the only area of possible relevance to this trial.  The court cannot sanction the production of that PCC unless it is satisfied of the three requirements in s 14H(1).
  3. [27]
    Ms Lovel pressed the possibility that the psychologists’ records might include matters that are not PCC.  She was unable to suggest what they might be.  That is not surprising. In any event, the quest to search the unprotected remnant of the records was no more than a fishing expedition.

The question of leave for the psychologists’ records

  1. [28]
    The onus is on the applicants to satisfy the court, in accordance with s 14H(1), that the PCC will have “substantial probative value”, that there is no other available source of the matters to which it relates and that the public interest in admitting the communication into evidence “substantially outweighs” the public interest in preserving confidentiality and protecting the counselled person from harm. 
  2. [29]
    Matters that must be taken into account for the balance of public interest are set out in s 14H(2) of the Act. They are heavily weighted towards confidentiality, but they do include the need to enable a full defence and any other matters of relevance.

The nature of the prosecution

  1. [30]
    This is a rape trial. The likely issues will be lack of consent and the reliability of the complainant. It is common ground that the complainant hosted a high school party at her home, without adult supervision.  The applicant and his friends attended uninvited.  There was underage drinking.  The complainant was intoxicated.   She alleges that the applicant raped her in the laundry and ejaculated on her clothes. She  made a prompt complaint and the applicant participated in a police interview.  He initially denied any sexual contact, but when told the police would test the clothing, he admitted penetration. 

The defence burden

  1. [31]
    Without knowing the content of the PCC, it can be very difficult for an applicant to particularise an argument for leave.  The matters raised in support of the present application were these:
  1. 1.Potential inconsistency between any version in the notes and the account provided to police or in future testimony; and
  2. 2.Potential motive to lie that might be raised, particularly as concerns the complainant’s relationship with her mother and possible discipline for hosting a party without permission; and
  3. 3.“Psychological stressors” may call into question the complainant’s reliability as a witness.
  1. [32]
    None of those matters rise above the level of speculative possibilities. The first hurdle is the identification of “substantial relevance”.  While the credit and reliability of the complainant will be in issue in the present case, the court must be satisfied the protected communication “will” have substantial relevance.  Neither the mere possibility nor marginal relevance will be enough.  In the present application, there is no basis to infer inconsistency or the disclosure of anything of substantial relevance.
  2. [33]
    The defence suggestion of motive is prompted by the facts of the Crown case, namely a teenage party in the absence of the parent.  The defence will have the opportunity to cross examine both the complainant and her mother about it.  There is no indication the psychological records will add anything or raise any motive at all.
  3. [34]
    Ms Lovel nominated illness, memory problems and medications as the sorts of things that might impair reliability. She hypothesised that the absence of evidence might leave a jury speculating.
  4. [35]
    It is not clear why a jury would have cause to speculate.  In any event, the use of counselling is not uncommon in the community.  Mental health issues can affect anyone at any time. They are not limited to serious illness like psychoses, but include more common problems like stress or anxiety, which in most cases, would be unlikely on their own, to impact on the reliability of the sufferer.  Of course, each case must be assessed on its own facts.  If for example a material issue was the witness’s interpretation of a fleeting sound or a gesture, an anxiety disorder might call into question the reliability of the witness’s perception. In another case, certain prescribed medications might affect memory or perception. [15] Statements made by the witness in the course of counselling might be inconsistent with the witness’s evidence.  Those matters would go to the relevance of PCC. The applicant’s onus however cannot be met by speculation.
  5. [36]
    Ms Lovell contends there is information which raised a concern about the complainant’s reliability and secondly, opened the possibility of an inconsistent statement.  She referred to a letter from the complainant’s GP, Dr Young, certifying that the complainant was unfit to testify.  It was dated 1 December 2020, 11 months after the incident and complaint, and only a few days before the testimony of the complainant was to be pre-recorded. The letter stated that the complainant would be “unfit the next day and pending further medical and psychological assessment and treatment.  We are arranging regular counselling sessions to support and safely allow (her) to take part in legal proceedings in a timely matter.”.  Expanding on the matter in a teleconference with the prosecutor, Dr Young said the complainant would be disadvantaged if required to testify on 4 December 2020 as she was “extremely emotionally fragile” and either would likely not attend or the examination would push her mental health to the brink of being “highly unstable”.    The complainant’s mother advised that attempts to find an opening with a suitable psychologist before the new year were unsuccessful. 
  6. [37]
    The information provided by Dr Young goes no further than identifying emotional distress in December 2020 to the level where the complainant would be disadvantaged as a witness and at risk of suffering further psychological harm.  Those are the sorts of matters which would otherwise warrant special measures under s 21A of the Act. The information from Dr Young also indicated the vulnerability would abate.  It foreshadowed sufficient recovery to testify after the benefit of regular counselling.  The information does not signal the complainant’s untruthfulness or unreliability through impairment of perception or memory or for any other reason, either at the time of count 3 or later.
  7. [38]
    The complainant saw the psychologists in 2021. Ms Bryson (for the co-accused) had submitted that the counselling records were “highly relevant given they came into existence during the time period since the complainant was interviewed by police but prior to being called as a witness”.  If the mere use of counselling services after an alleged rape was enough to overcome the privilege, it would be no protection at all.  The argument misconceives the very purpose of the legislation.  The first consideration listed for weighing the public interest in s 14H(2) is “the need to encourage victims of sexual assault offences to seek counselling”.  By its very nature, sexual assault is a traumatic event. Participation in counselling says nothing about the credibility of the complainant or the substantial relevance of the communication. 
  8. [39]
    The complainant may or may not have given a version of events to her counsellor.  Even if she did, it would not necessarily be relevant.  In my experience, applications for leave are often brought without any indication of probative value.  The most common impetus for an application seems to be the assumption that in order to have a fair trial, the defence must have access to everything said by or about the complainant.  It is misconceived. Those accused of sexual assault do not usually have access to the catalogue of what the complainant may have said about the offence after his or her formal complaint was made.  Such communications are not part of the usual investigation or disclosure.  They are not admissible as preliminary complaint. They would be inadmissible and irrelevant unless they disclosed some new fact relevant to inculpate or exculpate the accused, or unless the information involved inconsistency or a retraction, or some other exception to the hearsay rule.
  9. [40]
    Psychological impacts of sexual assault like depression, anxiety and post-traumatic stress disorder are commonly put before this court in cases where the person accused has pleaded guilty.  Those impacts do not reflect on the reliability of the sufferer. In R v Demos,[16] the complainant suffered from conditions of depression and anxiety (as well as body dysmorphia).  She was on medication and had spent two years in counselling.  The defence read about those matters in the victim impact statement, after the trial. The Court of Appeal rejected the argument that such matters might cast doubt on the complainant’s reliability.  Demos had submitted that the type of mental health conditions could have warranted a Bromley[17] direction. It was fanciful. Delivering the judgment of the court, Holmes JA (as Her Honour then was) said: “...this seems fanciful; there is no hint of any justification for thinking they (the mental health conditions) might have made her evidence unreliable”.[18] As for the possibility of inconsistent statements, the prospect “that inconsistent statements would be found in the records of any treating doctors, was entirely speculative”.[19]  Further on:

the material is sought, not because the depression, anxiety and body dysmorphic disorder referred to in the victim impact statement have any relevance to the issues in the trial, but because it is hoped that the complainant might have given an account in which inconsistencies can be found.  That in itself, requires a number of assumptions: that the complainant did give an account of events to her treating doctors and psychologist; that any such account was recorded in a form which allows the complainant’s statements to be discerned; and that any such statements will prove to be inconsistent in some material way. At best, what is being offered by way of suggested forensic advantage is speculation as to what might be contained in the complainant’s medical records.”.[20]

  1. [41]
    Demos was decided before the sexual assault privilege was introduced,[21] however the observations in the judgement have obvious application for considerations of “substantial probative value” under s 14H. 
  2. [42]
    It follows I am not satisfied that the PCC records of Umbrella Psychology and Child Psych will have substantial probative value.  Furthermore, there is nothing to indicate the defence will be impaired without access to that material whereas if it was released to them, there is a likelihood of harm to the complainant.  The public interest overwhelmingly favours the preservation of the confidentially of the material.

Records of the Department of Education

  1. [43]
    Ms Lovel now seeks the school records.  It is likely that PCC represents only a small part of the file.
  2. [44]
    As this is an application to access PCC within the Education Department records, the relevant records should be produced for classification.  Pursuant to s 14M(4) the relevant records should be produced, and access given only to the legal representatives for the counselled person, pending a determination of what is PCC.  The order will be for the production of the Education Department’s records for a period proximate to the incident and complaint, namely from 19 June 2019 to the present.
  3. [45]
    Whether the earlier records of the Department of Education contain any PCC is unknown, but the records that are not PCC are not subject to the requirement for leave.  In the absence of leave to subpoena being given, the defence could still pursue under rule 30,[22] a subpoena for the earlier records of the Education Department, excluding PCC.  To avoid the prohibition in s 14F of the Act, the subpoena would not only need to identify the period and nature of the documents sought, it would have to expressly exclude PCC.  In my view, it would also be appropriate to include an explanation of PCC on the face of the subpoena.  The explanation could be something along these lines:  

“Protected counselling communication” is explained in s 14B of the Evidence Act 1977, as a record of any confidential communication of the following kind:

  1. Between X (name of complainant) and a “counsellor” (i.e. a person trained or experienced in counselling, who listened to, supported, helped, encouraged, advised or gave therapy to X in the course of his or her work (paid or voluntary, excluding as a religious representative); or
  2. By such a “counsellor” to X to further the counselling process; or
  3. By such a “counsellor” about X to further the counselling process; or
  4. About X by her parent, carer or support person present to facilitate communication between X and such a “counsellor”; or
  5. About X by her parent, carer or support person to further the counselling process.
  1. [46]
    I do not know the breadth of the records that will be sought, and it is unclear how a review of the complainant’s entire schooling would serve a legitimate forensic purpose in relation to the complaint made when she was 15 years old. I note the right of the Education Department to object or apply to have the subpoena set aside or narrowed is preserved by the Criminal Practice Rules.[23]   

ORDERS

  1. 1.The application for the production of the records of Child Psych and Umbrella Lane Psychology is dismissed.
  2. 2.The application for leave to access the records of Child Psych and Umbrella Lane Psychology is dismissed.
  3. 3.Pursuant to s 14M of the Evidence Act 1977 (Qld) the Department of Education is to produce its records for the period from 1 June 2019 to the present relating to the complainant (named in count 3 of the indictment number 396/20). 
  1. (i)
    those records are to be kept in an envelope and not to be accessed by anyone other than the representatives of the complainant pursuant to s 14M(4) pending a determination of what is PCC.
  2. (ii)
    the representatives of the complainant may access and copy the records for the purpose of making submissions on what portions are PCC.
  3. (iii)
    the hearing of the defence application for leave to access PCC in those records is adjourned.
  1. 4.The application on respect of the Department of Education records is adjourned to a date to be fixed.

Footnotes

   [1]     Criminal Code Act 1899 (Qld) s 590; Director of Public Prosecutions Act 1984 (Qld).

[2] Criminal Code Act 1899 (Qld) s 686.

[3]  Evidence Act 1977 (Qld) s 14L.

[4]Evidence Act 1977 (Qld) ss 14H (3);14I.

[5]  Except s 14P, a prohibition on the production or use of privileged PCC in civil proceedings.

[6] Evidence Act 1977 (Qld) s 14M(2).

[7]     Evidence Act 1977 (Qld) s 14M(3).

[8] Evidence Act 1977 (Qld) s 14M(4).

[9] Evidence Act 1977 (Qld) s 14M(5).

[10]  Or Subdivision 2, if it is a committal or bail proceeding.

[11]  Explanatory Notes, Victims of Crime Assistance and Other Legislation Amendment Bill 2016 (‘The  Explanatory Notes’).

[12] The Explanatory Notes, 2. “Since the late 1990’s, all other Australian jurisdictions have introduced some form” of sexual assault counselling privilege.  The impetus for Queensland was recommendation 130 of a report from the Special Taskforce on Domestic and Family Violence, “in accepting this recommendation, the Queensland Government acknowledged the benefits of the NSW legislative model as it seeks to ensure the appropriate balance in each case between the right to a fair trial and the public interest in preserving confidentiality of counselling communications.”.

[13]  The second notable difference is that s 299(3) of the Criminal Procedure Act 1986 (NSW) prevents the court from giving a party access to the material before a positive ruling that the privilege does not apply or leave is given.  Whereas such a course seems open under s 14M(4) of the Queensland Act.for the purpose of making submissions about whether the material is PCC

[14]R v Rohan [2018] NSWCA 89 [54]: “Nothing in terms of s 299B 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, including, for example, whether under s 299D(1)(a) there is “substantial probative value”.  The Victorian legislation is even clearer, expressly allowing the court access for “the purpose of determining leave…” Evidence (Miscellaneous Provisions) Act 1958 (Vic) s 32C(6).

[15]  Here, the psychologists are not qualified to prescribe medication, and the applicant already has access to the complainant’s medications through the medical reports.

[16]  [2012] QCA 165 (‘Demos’).

[17] Bromley v The Queen (1986) 161 CLR 315.

[18] Demos (n 16) [10].

[19] Demos (n 16) [12].

[20] Demos (n 16) [20].

[21]  At that time, the test for inspection of documents was the common law test of a “legitimate forensic purpose, which purpose must be sufficiently disclosed”.

[22]  Criminal Practice Rules 1999 (Qld) r 30.

[23]  Criminal Practice Rules 1999 (Qld) rr 32, 33.

Close

Editorial Notes

  • Published Case Name:

    R v MFJ

  • Shortened Case Name:

    R v MFJ

  • MNC:

    [2021] QCHC 34

  • Court:

    QChC

  • Judge(s):

    Judge Clare SC

  • Date:

    09 Sep 2021

Appeal Status

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