R v TRKJ [No 2][2023] QDC 231

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The defendant is charged on indictment with three alleged offences of indecent treatment of a child under 16, under his care. The complainant was, practically speaking, the applicant’s stepdaughter. The offending alleged against the applicant is said to have occurred between January 2016 and December 2018. The indictment has been before the court since 2019. In late 2020 I refused an application by the defendant for access to protected counselling communications (‘PCC’).^[1] The defendant unsuccessfully sought review of my decision in the Supreme Court.^[2] In 2022 the defendant sought to reagitate the application to access and use PCC. The matter was reviewed several times and oral submissions were made by the parties on 25 November 2022 before I reserved my decision.
2. [2]
   While my decision was reserved, Judge Long SC delivered reasons in R v HJJ.^[3] The reasons in HJJ were potentially relevant to the procedures to be adopted when deciding applications such as the present. The lawyers representing the counselled person in HJJ applied for review of Judge Long’s decision in the Supreme Court. The result was the decision of Justice Cooper in MH v HJ.^[4] Judge Long’s decision was set aside, and the matter remitted for further consideration. Following the decision in MH v HJ, I invited further written submissions from the parties to address the effect of the decision of the Supreme Court and the proper procedure to be followed. Those submissions have been received. What remains to be decided by me is whether the applicant should be permitted to have access to any PCC and if he should be allowed to use it for any purpose.
3. [3]
   The tortured path to this point is the direct result of poorly drafted legislation. As I remarked in my original decision, some three years ago, the legislation governing access to PCC in criminal proceedings is incoherent and almost unworkable.^[5] Justice Applegarth agreed with my observations^[6] and suggested that the ‘problems associated with the drafting and workability of the provisions’ should make them ‘the subject of urgent attention by the government, prosecuting authorities and policy makers.’^[7] Despite these and other criticisms of the parlous drafting of this legislation, nothing has changed.^[8] The result is inconsistent decisions of judges of the District Court,^[9] arising because the legislation leaves such large questions unanswered it is up to individual judges to fill the gaps. As interpreted and applied by some judges, the legislation does little to protect the confidentiality of communications between an alleged victim of a sexual offence and a counsellor. This seems to be inconsistent with the purpose of the legislation. If that is so, it is a highly undesirable outcome.
4. [4]
   My decision today is to the effect that the defendant has shown a sufficient likelihood there is some PCC which will have substantial probative value, justifying orders granting him access to the material and permission to use the material at his trial. The applicant has not shown he should have leave to inspect or use the balance of the PCC he seeks. It has taken a long time to reach this position. Such delay and uncertainty is inconsistent with the stated policy behind other legislation dealing with the evidence of complainants in prosecutions for alleged sexual offences. But, in my view, it is the inevitable product of the drafting of Part 2, Division 2A of the Evidence Act 1977 (Qld).

What does the legislation say?

5. [5]
   I begin by repeating some parts of my earlier decision because they have not been said to be wrong and I adhere to the views already expressed.
6. [6]
   The legislation governing access to PCC is found in Part 2, Division 2A of the Evidence Act 1977 (Qld). It was introduced by legislation passed in March 2017 and commenced in late 2017.^[10] Subdivision 3 applies to the present proceedings^[11] and creates what is described in the Explanatory Notes accompanying the Bill as a ‘qualified privilege’.^[12] The privilege is expressed in the following terms:

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. compel, whether by subpoena or otherwise, another person to produce a protected counselling communication to a court;
2. produce to a court, adduce evidence of or otherwise use, a protected counselling communication;
3. otherwise disclose, inspect or copy a protected counselling communication.

7. [7]
   The capacity to apply for leave is provided for in section 14G and includes a requirement that notice of the application be given to the ‘counselled person’. This is a defined term that means ‘a person who … is being, or has at any time been, counselled by a counsellor; and … is, or has at any time been, a victim or alleged victim of a sexual assault offence’. There follows the provision governing whether or not leave will be granted.

14H Deciding whether to grant leave

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

1. 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

2. other documents or evidence concerning the matters to which the communication relates are not available; and
3. the public interest in admitting the communication into evidence substantially outweighs the public interest in—
   1. preserving the confidentiality of the communication; and
   2. protecting the counselled person from harm.

2. In deciding the matter mentioned in subsection (1) (c) , the court must have regard to the following matters—
   1. the need to encourage victims of sexual assault offences to seek counselling;
   2. that the effectiveness of counselling is likely to be dependent on maintaining the confidentiality of the counselling relationship;
   3. the public interest in ensuring victims of sexual assault offences receive effective counselling;
   4. that disclosure of the protected counselling communication is likely to damage the relationship between the counsellor and the counselled person;
   5. whether disclosure of the communication is sought on the basis of a discriminatory belief or bias;
   6. that the disclosure of the communication is likely to infringe a reasonable expectation of privacy;
   7. the extent to which the communication is necessary to enable the accused person to make a full defence;
   8. any other matter the court considers relevant.
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.
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. anyone who is not an essential person; and
   2. an essential person, if—
      1. the counselled person asks that the essential person be excluded; and
      2. the court considers excluding the essential person would serve a proper interest of the counselled person.
5. The court must not disclose, or make available to a party to the proceeding, a statement made to the court under subsection (3).
6. The court must state its reasons for granting or refusing to grant the application.
7. If the proceeding is a trial by jury, the court must hear and decide the application in the absence of the jury.
8. In this section—

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

8. [8]
   Section 14A provides a definition of what is PCC. It is:

an oral or written communication made in confidence—

1. by a counselled person to a counsellor; or
2. by a counsellor to or about a counselled person to further the counselling process; or
3. 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.

9. [9]
   While both the counselled person and counsellors are to be given notice of any application,^[13] it is clear that the privilege inheres in the counselled person. That is because it is only the counselled person who is permitted, in certain circumstances, to waive the privilege.^[14]
10. [10]
    There is another provision I would note at this point. Section 14M is the only provision that expressly contemplates the court inspecting or examining a document or evidence. The section provides:

14M Deciding whether document or evidence is protected counselling communication

1. This section applies if a question arises under this division in relation to a proceeding to which subdivision 2 or 3 applies.
2. The court may consider a document or evidence to decide whether it is a protected counselling communication.
3. While the court is considering the document or evidence, the court must exclude from the room in which it is sitting—
   1. anyone who is not an essential person; and
   2. an essential person, if—
      1. the counselled person to whom the document or evidence relates asks that the essential person be excluded; and
      2. the court considers excluding the essential person would serve a proper interest of the counselled person.
4. The court may make any other order it thinks fit to facilitate its consideration of the document or evidence.
5. This section applies despite sections 14D and 14F.

11. [11]
    How these disparate provisions might operate in a sensible and cohesive manner has been the subject of much judicial consideration.

What has been said about how the legislation operates?

12. [12]
    Some judges have expressed the view that section 14M provides a basis upon which the court can compel the production of documents for the purpose of determining the issues raised by section 14H. Orders have been made, in apparent reliance upon section 14M, granting leave to applicants to subpoena PCC. Other judges have relied upon 14M as authorising the inspection of material by the court to decide the issues raised by section 14H.^[15] This approach has been questioned by other judges^[16] and must now be understood to be wrong. Orders of this kind are ‘irregular as s 14M does not empower the court to grant leave to issue a subpoena for PCC material.’^[17] Section 14M provides no authority to produce or inspect documents other than to determine the narrow question of whether a document or evidence is PCC.
13. [13]
    The question of whether the court has any power to inspect and consider documents to decide the questions posed by section 14H has been considered by some judges. While the legislation is silent, it has been decided by some judges that by implication the court has such a power, though it is to be exercised sparingly.^[18] In TRKJ, Applegarth J expressed the view that while the legislation did not exclude the possibility of the court inspecting documents, it would only be occasionally that there was a ‘need for a court to inspect documents in a finely-balanced case before deciding whether to grant an application for leave or to decide the conditions upon which leave is granted.’^[19] His Honour went on to say:

[102] In my view, the court’s power to hear and determine an application for leave includes the power to consider the documents in question should the occasion to do so arise. An intention to deprive the court of the opportunity to do so does not arise by necessary implication. An interpretation that does not deprive the court of a power to consider the documents is the interpretation that best achieves the purpose for which the court’s power to hear and determine applications was conferred.

…

[104] The fact that a power exists for the court to itself inspect documents does not mean that it will be necessary or appropriate for a judge to exercise the power in most cases. It certainly does not mean that the power should be exercised as a matter of routine in applications under Subdivision 3. The implied power does not exist to cure deficiencies in proof by the applicant for a grant of leave.

[105] Its too frequent exercise would undermine a purpose of the provisions which is to restrict access to protected counselling communications.

14. [14]
    I agree that if the legislation does imply the existence of such a power, it is one to be exercised sparingly. But as discussed below, I think it is also open to conclude that the ability to operate the legislation without such an implied power tends against the idea that the power exists.^[20]
15. [15]
    When considering whether a judge can or should inspect documents to decide section 14H issues, some judges in Queensland seem to have placed reliance upon an observation made by Adams J, sitting in the New South Wales Court of Criminal Appeal.^[21] This reliance is misplaced for at least three reasons. First, it is inconsistent with the reasoned position explained by Applegarth J that in most cases it will not be necessary or appropriate to exercise the power to inspect the documents. Secondly, the New South Wales legislation is different. Thirdly, the observation of Adams J did not have the support of the rest of court and has not since been adopted or endorsed.
16. [16]
    The statement of Adams J was made in the decision of NAR v PPC1.^[22] In a short five paragraph judgment his Honour indicated agreement with the reasons of Beech-Jones J but with some additional comments. Those comments included the following.

[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.

17. [17]
    Beech-Jones J found that the way in which the matter was litigated at first instance meant the issue did not have to be determined on the appeal.^[23] Hoeben JA agreed with Beech-Jones J, stating,

I make no comment in relation to the observations of Adams J since for the reasons set out in [42]-[49] of the judgment of Beech-Jones J, the issue does not arise for consideration in this matter. With legislation of this complexity, I am not prepared to express an opinion based on hypothetical facts.

18. [18]
    This point was reinforced by Hulme J in the subsequent decision of the New South Wales Court of Criminal Appeal in Rohan v R,^[24] where his Honour noted that ‘[Adams J’s] observation did not commend itself to the other members of the Court’. Hulme J went on to point out a subsequent reference to the observation of Adams J was not an endorsement of what his Honour had said about the process that should be undertaken in relation to an application for leave to issue a subpoena.^[25]
19. [19]
    It must also be noted that the New South Wales legislation is very different to that in Queensland.^[26] The critical difference for present purposes is to be found between section 299B of the Criminal Practice Act 1986 (NSW) and section 14M of the Evidence Act 1977 (Qld). The Queensland act expressly permits consideration of the documents or evidence only to decide if they are PCC. The New South Wales legislation is not so limited. It relevantly provides:

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.
2. If there is a jury, the document or evidence is to be considered in the absence of the jury.

20. [20]
    Despite the heading of section 299B, which unlike Queensland legislation does not form part of the act,^[27] it has been interpreted as providing the basis for a court to consider documents to answer any question that arises under the Division, including whether to grant leave to access the documents.^[28] This difference is in my view significant. It adds weight to a conclusion that the observation of Adams J about the operation of New South Wales legislation is irrelevant when considering the legislation in Queensland. It would be wrong to rely upon the observation of Adams J to suggest that a judge in Queensland would always, or even commonly, inspect documents to decide the issues raised by section 14H.
21. [21]
    Some further consideration of the two occasions this legislation has been discussed in the Supreme Court on applications for review is helpful. While these decisions do not bind judges of the District Court in the same manner as decisions of the Court of Appeal, the reasons given on each occasion are of undoubted assistance in construing the legislation.
22. [22]
    The first, TRKJ, was heard and decided by Applegarth J in late 2021. The following matters emerge from the reasons of Applegarth J. By implication, the legislation empowers a judge to peruse documents to decide an application for leave governed by section 14H. That is so despite the choice of the parliament to expressly confer a power to peruse the documents only in respect of an issue to be decided pursuant to section 14M.^[29] But the power is to be exercised in cases which are ‘finely balanced’ and not as a matter of routine.^[30] It is a power to be exercised judicially and for a proper purpose. Perusing documents to cure a deficiency in proof of one of the matters necessary for section 14H is not a proper purpose.^[31] Applegarth J rejected an argument that a judge was required to peruse the documents to decide if leave should be granted, saying the legislation does not place the judge in the role of an inquisitor.^[32]
23. [23]
    The second decision of the Supreme Court about this legislation arose from the decision of Long SC DCJ R v HJJ.^[33] His Honour decided R v HJJ and R v TJ^[34] at the same time. To an extent, the decision in HJJ relies on the reasoning in TJ.^[35] The latter case concerned an application for leave to subpoena and adduce evidence of PCC. Relevantly to the present matter, Judge Long concluded that there was a sufficient likelihood that the PCC contained information that was substantially probative, such that leave to subpoena the PCC should be granted. In particular, the indication was that there would be PCC containing evidence of ‘preliminary complaint’ as that term is defined in section 4A of the Criminal Law (Sexual Offences) Act 1978 (Qld). This conclusion was reached without the need for the judge to inspect any PCC. In this regard Judge Long considered that where leave is sought to issue a subpoena, the application of s 14H must be determined ‘upon what may be expected to be the content of the material, as far as that may be discernible from the evidence placed before the court.’^[36]
24. [24]
    HJJ was quite different. It began as an application seeking an order, purportedly pursuant to section 14M, to compel the production of PCC and a further order for leave to inspect and adduce evidence of the PCC. A further complication arose when an order was made, recorded as being ‘by consent’, for the production of records pursuant to section 14M. This order was irregular. As noted by Judge Long section 14M provides no authority to compel the production of PCC to decide if leave should be granted pursuant to sections 14G and 14H.^[37] The difficulty thus created by this irregular order was that PCC was produced to the court without there first having been any consideration of the criteria in section 14H. Judge Long concluded that as the PCC was in the control of the court, notwithstanding this irregularity, the inherent power of the court to control its own processes permitted an order allowing the parties to inspect the PCC to inform submissions about whether the application to use or adduce the PCC would be allowed. That is, even though leave had not been given to subpoena the PCC, the practical result of its production to the court pursuant to the irregular ‘consent’ order was to bring the material into the control of the court, which could then exercise inherent powers to determine the balance of the application.
25. [25]
    This conclusion was challenged by the counselled person who sought orders in the nature of certiorari from the Supreme Court. The result was the decision of Cooper J in MH v HJ.^[38] Cooper J agreed that the orders for the production of the PCC to the court were irregular and not empowered by section 14M.^[39] But his Honour disagreed that once the court was in control of the PCC, it was inherently empowered to permit an applicant to inspect PCC without satisfaction of the criteria set out in section 14H. An important fact in the decision in HJJ was that the documents were produced pursuant to an irregular order made without a consideration of the criteria in section 14H. The result was that Cooper J concluded the court had no power to permit the inspection of the PCC by the parties other than as provided for in sections 14G and 14H.^[40]
26. [26]
    I note that Cooper J also indicated his awareness of the concerns raised by District Court judges about the practical operation of this legislation, which his Honour did not discount or diminish. His Honour noted that the absence of legislative intervention to improve the practical operation of the legislation, while regrettable, did not alter the limits on the power of the court to permit the inspection of PCC.^[41]
27. [27]
    Section 14H(1)(a) requires an applicant to prove that the PCC ‘will, by itself or having regard to other documents or evidence…, have substantial probative value’. Courts have grappled with this phrase from an early point. In R v JML^[42] Fantin DCJ considered that in the context of this legislation ‘substantial’ connoted ‘very important, ample or considerable’. Her Honour regarded ‘substantial probative value’ as setting a standard higher than ‘legitimate forensic purpose’ or ‘significant probative value’, which was itself more than mere relevance.^[43] JML was considered by Judge Long in R v HJJ. His Honour noted that ‘substantial’ was capable of both quantitative (of ample or considerable size) and qualitative (real worth or value, corporeal) meanings. The view preferred by Judge Long was that ‘substantial’ in the context of this legislation referred to the quality of any probative value carried by the PCC, rather than a quantitative assessment. That is, the test will be satisfied where the judge concludes that the worth of the PCC, in the context of all relevant information,^[44] goes beyond mere relevance or having some probative value – it is necessary for the judge to be persuaded the PCC has some real worth or value sufficient to make it substantially probative.
28. [28]
    The terms of section 14H(1)(a) also require the judge to be satisfied that the PCC ‘will have’ substantial probative value. In ordinary English such a phrase might indicate the need for absolute certainty. That cannot be what it means in this legislation, or the test could never be satisfied. Thus, in R v JML, Fantin DCJ considered the phrase connoted ‘future certainty, or at the very least, likelihood, rather than mere possibility’.^[45]

What is my view about how the legislation operates?

29. [29]
    Having set out aspects of what has been said about this legislation, it is ultimately necessary for me to come to a view about how it operates. I begin by noting some important limitations on the circumstances in which PCC might come into the possession of, and be considered by, the court.
30. [30]
    First, section 14M does not permit the court to require the production of PCC for the purpose of considering the criteria in section 14H. Section 14M is concerned only with the determination of a real question about what is, or is not, PCC. If such a question arises, section 14M(4) may authorise the production of the documents for that purpose only, but this could not authorise the production of documents in order to consider the criteria set out in section 14H. In this regard I agree with what has been said by Applegarth J, Cooper J, and Long SC DCJ.^[46]
31. [31]
    Secondly, I remain hesitant about the notion that there is an implied power for a judge to privately inspect the documents to assess the criteria contained in section 14H, whether in unusual or finely balanced cases or otherwise. I have noted above that other judges have expressed a contrary view.^[47] The basis for my respectful disagreement with the conclusions reached by other judges is that I think it remains possible for this legislation to operate without the implication of such a power. If that is the case, the orthodox principles of statutory construction would mean such a power would not be found to exist. The grant of power by implication arises where it is necessary for the exercise of jurisdiction expressly conferred by legislation. In Grassby v The Queen, Dawson J, with whom the other members of the High Court relevantly agreed, wrote^[48]

However, notwithstanding that its powers may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise (ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest).

32. [32]
    This Latin maxim may be translated as ‘when the law gives anything to anyone, it also gives all those things without which the thing itself could not exist.’ The Latin can be expressed differently and in Egan v Willis the maxim was referred to by McHugh J as ‘quando lex aliquid alicui concedit, concedere videtur id, sine quo res ipsa esse non potest.’^[49] Its meaning, however, is the same. In Egan v Willis, McHugh J referred to the explanation of this maxim by Fleming CJ in Fenton v Hampton,^[50] an explanation later said by O'Connor J in the High Court to be a passage setting out the maxim’s ‘full and true import’.^[51] The statement of Fleming CJ in Fenton included the following.

Whenever something is authorised, and especially if, as a matter of duty, required to be done by law, and it is found impossible to do that thing unless something else not authorised in express terms be also done, then that something else will be supplied by necessary intendment.

33. [33]
    For an implied power to be ‘necessary’ it need not be ‘essential’. But nor can it be merely convenient or useful for the power to exist and it is not within the limits of judicial power to fill gaps in legislation. In this regard I agree with what was written by Cooper J in MH v HJ concerning implied powers.^[52]
34. [34]
    It is arguable, and I think likely, that the implied power found to exist by other judges is unnecessary because it is possible for a judge to be satisfied that leave should be granted on a limited basis allowing an applicant to inspect and use PCC for the purpose of a further application for use. If that is the conclusion of the judge, after applying the criteria in section 14H, the inspection and use of the PCC is expressly authorised by the legislation and there is no need for any implied power, let alone one that authorises a judge to inspect the PCC privately. As explained below, this is the process I would adopt when there is an application to subpoena, inspect or use PCC.^[53]
35. [35]
    If I am wrong, and there is a power for the private inspection of PCC by the judge arising by necessary implication, it remains one that would not commonly be exercised. Importantly, the implied power discussed in TRKJ and other cases^[54] does not exist to cure deficiencies in the proof of one or more of the matters required by section 14H to be established. The onus is on the applicant to prove these matters to the requisite standard. It is certainly not for a judge, as has been suggested from time to time, ‘to consider the material … and decide whether any of the material can be used to assist the applicant in obtaining a fair trial.’^[55]
36. [36]
    Usually, the threshold question in an application for leave will be that posed by section 14H(1)(a) – will the PCC have substantial probative value? It is for the applicant to prove that this question should be answered affirmatively. I agree with what has been said by Judge Long as to the meaning of ‘substantial probative value’.^[56] That is, to be of substantial probative value the PCC must be more than merely relevant or probative, it must have real worth or value such that the judge can conclude it is substantially probative.
37. [37]
    Proof that the PCC ‘will have’ such value does not require absolute proof or certainty. I agree with Judge Fantin that it requires ‘more than a mere possibility’.^[57] But where on the continuum between ‘possible’ and ‘certain’ should the threshold be located? ‘Will have’ combines an auxiliary verb with a bare infinitive in a form which is common, if elusive in its history and origins.^[58] This combination, in accordance with its ordinary usage, suggests to me that a high degree of confidence is necessary before a judge could conclude that the PCC will have substantial probative value. For the judge to decide if they have the necessary degree of confidence will require an assessment of the likelihood that the PCC will be of substantial probative value. This is an evaluative exercise to be conducted having regard to the available material and the real issues in the trial. It will involve two considerations. First, what is the likely content of the PCC and, second, will that content have substantial probative value. Too often applicants overlook the first consideration and go straight to arguments about the probative value of information that it is assumed or speculated will be contained in the PCC. An approach which ignores the need to identify the expected content of the PCC with some precision will be one that fails to address an important matter required to be considered by section 14H.
38. [38]
    This assessment of the content and value of the PCC can, and in my view should, proceed at first without reference to the PCC the subject of the application. To do otherwise is to ignore the clear intent of the legislation to severely restrict the circumstances in which PCC might be accessed or used by a party. This intent is relevant to construing the statute,^[59] and is amply illustrated in the text of the legislation itself and the extrinsic material. As I have said (footnotes retained)^[60]

there is much in the extrinsic material to suggest that the parliament intended to favour the protection of counselling over the interests of securing a ‘fair’ trial.^[61] It may be true that the ‘scheme seeks to balance the competing public interests of ensuring the fair trial of an accused with respecting the privacy of counselling communications’.^[62] But it does not automatically follow that these (sometimes) competing interests start in perfect balance. Indications that the parliament intended to favour the protection of counselling in quite a broad way can be found in the extended definition of a ‘protected counselling communication’. Such is not limited to counselling arising from the alleged offence or offences.^[63] As well, the parliament was aware of the potential for the legislation to ‘adversely affect… the rights and liberties of people accused of a criminal offence’ but considered such effect justified having regard to ‘the public interest in encouraging people who have been sexually assaulted to seek therapy to assist in their recovery’.^[64] In my view, to the extent that the extrinsic material is relevant to a purposive interpretation of the legislation, it suggests an approach that favours the protection of PCC is to be preferred. It does not suggest an approach that would have the court routinely inspect PCC to decide what can or should be given to the defendant for use in their trial.

39. [39]
    I maintain this view.
40. [40]
    It is no doubt a difficult task for the applicant to satisfy section 14H(1)(a) without knowing the contents of the PCC. But that is the result of this legislation which seeks to protect the confidentiality of what is defined as PCC. Importantly, it is not an impossible task. There is no prohibition on an applicant obtaining material that is not PCC. Much information may be available from sources that do not meet the definition of PCC. This, along with material in the brief and the applicant’s instructions may be enough to satisfy section 14H(1)(a).^[65]
41. [41]
    I can see no occasion on which a judge will resort to inspection of the PCC without having first considered and applied the criteria in section 14H. Such an approach would be wrong because it ignores the effect and plain intent of this legislation.
42. [42]
    With these things in mind, it appears to me that the process for determining an application for leave pursuant to sections 14G and 14H would usually be as follows.
43. [43]
    First, the applicant must gather the material necessary to decide whether section 14H(1)(a) can be satisfied. If the material is insufficient for this purpose, the application cannot succeed, and it would be a waste of resources for the application to be made. This first step is necessarily to be taken without knowing the exact content of the PCC which is sought and mindful that any limited power to inspect PCC, if it exists, does not exist to cure deficiencies in proof of any of the necessary matters. There can be no expectation that a judge will peruse the documents to see if there is material helpful to the applicant or will order the documents be produced to the court. The power of the court to order that PCC be produced to itself, as recognised by Applegarth J in TRKJ,^[66] exists only to facilitate the court considering the documents in an appropriate case. There is no requirement for the court to order the production of or consider the documents as a matter of routine.
44. [44]
    Secondly, if the applicant decides there is sufficient material to satisfy section 14H(1)(a), the application and outline is to be filed in accordance with Practice Direction 5 of 2021. It is to be expected that the outline will be accompanied by the evidence the applicant has decided is sufficient to satisfy section 14H(1)(a), and that the outline will describe the basis on which the court should reach this conclusion. This will include setting out why the judge should have a high degree of confidence concerning the content of the PCC and why it will have substantial probative value. In this regard it is difficult to see how a general claim that the credit of the counselled person is critical, and some inconsistent statement may exist would be sufficient to satisfy section 14H(1)(a). Nor would the possibility that the PCC may be helpful in formulating lines of cross-examination usually be enough to amount to substantial probative value.
45. [45]
    Thirdly, upon the notice requirements being satisfied,^[67] it may be necessary to determine if there is any real question arising under section 14M about what is, or is not, PCC. Usually there is no dispute about this, but a question might sometimes arise, in which case the procedures outlined in the practice direction can be adopted. This might include, if it is necessary, the court exercising the power under section 14M(4) to order the production of the PCC to the court. The court may then ‘consider the document or evidence’ to decide if it is PCC. If this happens, section 14M does not give the court any power to inspect the documents when considering the criteria in section 14H.
46. [46]
    Fourthly, the initial application for leave will be heard. It is to be expected this would usually be concerned only with whether the applicant has shown the criteria have been satisfied such that a subpoena to compel the production of PCC can issue. The applicant will have to demonstrate what it is about the particular case that means the court will conclude the PCC ‘will, by itself or having regard to other documents or evidence …, have substantial probative value,’ and address the other criteria in section 14H. The initial application will be heard and decided in the absence of the PCC, and it will be for the applicant to prove, among other things, the likely content of the PCC and why it is of substantial probative value.
47. [47]
    If section 14H is not satisfied the application will be dismissed. If the judge is satisfied that leave should be granted to subpoena the PCC the order will be made, and consideration can be given to what further steps are appropriate. One possibility is that the applicant has shown they should not only have leave to issue the subpoena but also that the expected content of the PCC is such that they should have permission to use and adduce it.^[68] Another possibility is that the applicant has demonstrated a subpoena should issue, but it is still unclear to what extent they ought to be permitted to use the PCC at a trial. This may be because the weight to be given to the matters that section 14H requires to be considered differs between an application to subpoena PCC and an application to use or adduce that material at a trial. One criterion established by section 14H is that the

public interest in admitting the communication into evidence substantially outweighs the public interest in:

1. preserving the confidentiality of the communication; and

2. protecting the counselled person from harm.

48. [48]
    In a particular case a judge might conclude that this criterion is of less significance when all that is being sought is the production of the PCC by subpoena or a limited use of the PCC by the lawyers for the parties to determine whether it can be used at a trial. There may be less concern about potential harm to the counselled persons arising from this disclosure and use than if the PCC were to be used at a trial. The weight to be given to this criterion will vary according to the nature of the leave being sought.
49. [49]
    If the judge decides leave should be granted to issue a subpoena, but is undecided about the use of the PCC, it will be necessary for there to be a further hearing to decide if leave should be granted to use or adduce the PCC at the trial. It will be open to the judge to consider if the applicant and other parties should be granted leave to inspect the PCC produced under subpoena and to ‘use’ it for the limited purpose of the further hearing. That is, the judge might be satisfied that the matters justifying a grant of leave to issue the subpoena also justify a limited grant to use the PCC to make informed submissions about whether any of it can be used or adduced at the trial. Leave to use the PCC for this purpose may be the subject of conditions, such as restricting the material only to the lawyers for the parties. Any conditions imposed would be of a kind considered ‘appropriate to limit the extent of the harm likely to be caused to the counselled person by the production of a document, or the adducing of evidence, that is a protected counselling communication relating to that person.’^[69]
50. [50]
    Understood in this way, the legislation does not require there to be a power for the judge to inspect the PCC for themselves. Any decision about what inspection or use of the PCC might be allowed is determined by applying section 14H at each stage. The ‘finely balanced case’ referred to by Applegarth J in TRKJ as justifying the existence of an implied power for the judge to privately inspect the PCC may properly be advanced and decided by the adoption of the process set out above.
51. [51]
    If a further hearing as to use is necessary, and is facilitated by a limited grant of leave, there would be further submissions filed concerning the intended use of the PCC at the trial and addressing the criteria in section 14H having regard to the content of the PCC. These submissions will need to articulate the legal basis upon which the application submits the PCC is itself admissible in the trial or otherwise can be used. Finally, at the further hearing the judge will consider the criteria set out in section 14H having regard to the parties’ informed submissions to decide if there should be a further grant of leave.
52. [52]
    Finally, it is necessary to record that the procedure which I have set out is one that assumes the application begins with the applicant seeking leave to subpoena PCC, the contents of which are not known to the parties. The appropriate procedures will necessarily vary depending on the circumstances of a particular case. For example, where the content of the PCC is known to a party or parties, whether permissibly or because of some irregularity, it will be necessary for the court to confront the reality that of that knowledge. This is such as case.

The application of this process in the present case

53. [53]
    This application falls to be considered at the fourth stage identified above. Some documents that contain PCC are already with the court pursuant to an early order made under section 14M. The reality that these documents are in the control of the court means that, practically speaking, a subpoena would be otiose, and the real issue is whether applicant should have leave to inspect and use any part of the PCC. There is a further application for leave to subpoena, inspect, and use PCC held by a government department which, for convenience, I will call Child Safety.
54. [54]
    It is helpful to set the context of the applications by beginning with a summary of the allegations.

The allegations against the applicant

55. [55]
    The applicant had been in a relationship with the complainant’s mother from when the complainant was about two years old. For many years the applicant was a parent to the complainant. Even after the applicant’s relationship with the complainant’s mother ended in 2014, the applicant continued to take a parental role in relation to the complainant. She and her sister would spend weekends with the applicant. In late January 2019, when the complainant was about 14 and a half years old, she told her mother she was anxious when she had to stay with the applicant because he ‘uses the light on his phone to look at my vagina’. The complainant’s mother took her to see a psychiatrist and, a few days later, a complaint was made to police.
56. [56]
    The complainant was interviewed by the police. She told them of three occasions when the applicant toucher her indecently. The first time was in 2016 when she was 12 years old. After watching a movie, the complainant went to bed with her sister. She fell asleep but woke when the applicant came into the room. She pretended to be asleep and felt the applicant move her shorts and underpants to the side, exposing her genitals. Using the light on his mobile telephone to see, he spread apart the complainant’s labia. When the complainant stirred, he stopped, turned off the light, and lay down on a mattress on the floor of the room.
57. [57]
    On another occasion the complainant was visiting with the applicant. She was asleep on a mattress on the floor of his room, facing toward a mirror, when she woke to the light of his mobile telephone shining in the mirror. She saw the applicant kneeling beside her and moving her shorts. He appeared to be looking at her genitals. The complainant rolled over and the applicant turned off the light and lay down on his bed. As for the third alleged offence, the complainant said she could fix a precise time for the incident as she checked the time on her phone during the incident. At 2.37 am on 8 December 2018 the applicant came home from a party and entered the bedroom where the complainant was sleeping. Using the light from his telephone to see, the applicant moved her shorts, and she felt his hand on her vulva.
58. [58]
    After the police were told of the allegations there was a ‘pre-text’ call between the complainant’s mother and the applicant. No admissions were made. The applicant was also interviewed by the police and denied the allegations.

The material sought by the applicant

59. [59]
    The material sought by the applicant falls into two categories: documents already in the possession of the court and documents in the possession of Child Safety. The first category of documents concerns records from Laurel Place, a counselling service, Dr Samuel Jolayemi, a psychiatrist, and Zig Zag Young Women’s Resource Centre, a support service for young people who are alleged victims of sexual offences. The Child Safety documents sought by the applicant are ‘all documents held in relation to the counselled person’.
60. [60]
    There is no remaining dispute that what the applicant seeks is PCC. No question arises under section 14M.

Matters relevant to a consideration of section 14H(1)(a)

61. [61]
    The material which was relied upon by the applicant was identified and tendered. From it the following matters emerge.
62. [62]
    The three offences alleged against the applicant are said to have occurred in 2016 (counts one and two) and on or about 8 December 2018 (count three). The counselled person first complained of the alleged offences to her mother on 29 January 2019. This occurred at the mother’s home. A further conversation occurred the next day and was recorded by the counselled person’s mother. The mother asked the counselled person whether she was ‘100 percent’ that the offences had occurred and queried whether the counselled person had ‘been asleep and dreaming that those things are happening’. Arrangements were made and the counselled person saw Dr Jolayemi at 3.30 pm on the afternoon of 30 January 2019. On 1 February 2019 the counselled person saw a counsellor at Zig Zag and ‘disclosed child sexual abuse perpetrated by [the applicant]’.
63. [63]
    Police took a statement from the counsellor at Zig Zag on 8 April 2019 and obtained her notes of meetings with the counselled person on 1 February 2019 and 8 February 2019. These documents, which contain PCC, were provided to the Office of the Director of Public Prosecutions (‘DPP’). This disclosure of PCC in connection with the proceeding was contrary to section 14F(c). In turn the DPP disclosed the documents to the applicant’s lawyers. This disclosure was also contrary to section 14F(c). The obligations of the DPP where it is reasonably considered a document that should otherwise be disclosed is a protected counselling communication is to be found in section 590APA of the Criminal Code. It is regrettable that this provision was ignored. The same thing occurred in relation to a statement, letters and notes written by Dr Jolayemi. The result is that the prosecution, the applicant’s lawyers, and the counselled person’s lawyers have seen PCC without first obtaining leave.
64. [64]
    This is a relevant matter. The consideration of the competing public interest in protecting confidentiality contained in section 14H(1)(c) has less relevance where there has already been a disclosure of the PCC. Similarly, the risk of harm to the counselled person from disclosure may not be as pronounced. There is then the fact that the parties all know the content of this PCC. Indeed, it forms part of the bundle of material filed by the applicant and relied upon by him. While these documents should not have been given to the applicant without leave of the court, it is the reality that the parties have seen the documents and know that they contain evidence of preliminary complaint. It is unfortunate that improper disclosure was made by the prosecuting authorities, but it seems to me that I must confront this reality and decide the present application having regard to the content of the documents already disclosed.
65. [65]
    On 4 February 2019 the counselled person went to the police. She was interviewed and gave her first formal witness statement to a police officer.^[70]
66. [66]
    There is evidence, apart from the PCC, which indicates the counselled person suffers anxiety and panic attacks. There is evidence that the counselled person received counselling from Laurel Place and Zig Zag in 2017, which would have been after the first two alleged offences but before the third.
67. [67]
    The apparent reason for counselling in 2017 is that the counselled person had been sexually abused by another man. These offences were serious and occurred between June 2014 and January 2017. The counselled person was interviewed by police about these other offences on three occasions in 2017. The first and second counts alleged against the applicant are said to have occurred sometime in 2016, before the counselled person was interviewed in 2017. At no time during the interviews with police did the counselled person mention any alleged abuse by the applicant. While the earlier offences were more serious than the present allegations, there are some similarities, such as the use of a mobile telephone to photograph or record the counselled person’s genitals and spreading her labia to expose her vagina.

Conclusion in relation to section 14H(1)(a)

68. [68]
    The documents contained at pages 111 to 118 inclusive of the bundle tendered by the applicant contain the information from Zig Zag and Dr Jolayemi which has already been disclosed. This PCC indicates that preliminary complaints were made to both a counsellor at Zig Zag and Dr Jolayemi. Evidence of preliminary complaint falls into special category. At common law, such evidence would not be admissible unless it the complaint was made at the first reasonable opportunity after the alleged offence.^[71] This position was changed by statute in Queensland in early 2004.^[72] This inserted section 4A into the Criminal Law (Sexual Offences) Act 1978 (Qld), which rendered admissible ‘[e]vidence of how and when any preliminary complaint was made by the complainant about the alleged commission of the offence by the defendant … regardless of when the preliminary complaint was made’. The legislation may be seen as a response to the comments of Thomas JA in R v LSS,^[73] where his Honour said,

In my view it would assist any jury in a case involving a sexual complaint to know how and when any complaint about the conduct of the accused person first emerged. Evidence of this kind is pivotal to explaining how the complainant comes to be in the witness box and the accused in the dock. An assessment of the truth of the complaint can hardly be attempted without some knowledge of how it first saw the light of day. It is my view that evidence of first complaint should always be receivable in cases involving sexual misconduct, as evidence which permits a better understanding of the story, irrespective of when it was made. To say that an early complaint is merely a bolster, or a late complaint a drawback to the complainant’s credibility is an oversimplification. The circumstances of first emergence of the complaint may enable the story to be seen in a different light.

69. [69]
    Such evidence is now routinely admitted, and juries are directed as to the use they may make of it. It is often important evidence relevant to the assessment of whether a complainant’s testimony is truthful and accurate. In my view, such evidence will almost always be of real worth or value, such that it is substantially probative. That is my view in this case. The documents at pages 111 to 118 inclusive contain PCC of substantial probative value, satisfying the first criterion in section 14H(1).
70. [70]
    The applicant also contends the PCC from Dr Jolayemi has substantial probative value because of its reference to potential diagnoses. The applicant’s argument is that this is a matter relevant to credibility. That is probably right, and it would usually be a suitable matter for cross-examination of a witness where the properly available material suggests such a diagnosis. But ‘relevance to credibility’ is not the same thing as substantial probative value. Some information that is relevant to credibility will be substantially probative. Much will not. In this case the potential diagnosis is of an ‘[a]djustment disorder with disturbance of mood and conduct’. The applicant does not point to any evidence to explain why such a diagnosis, if proved, would be substantially relevant. No attempt has been made to explain, for example, why such a disorder might make a witness’s evidence materially less reliable. In my view, this part of the PCC does not possess substantial probative value.
71. [71]
    This conclusion means it is unnecessary to consider whether ‘other documents or evidence concerning the matters to which the communication relates are not available’.^[74] I would note, however, that the applicant’s outlines refer to ample evidence suggesting that the counselled person suffers from anxiety and panic attacks. This may be different from a conduct disorder, but the records of Dr Jolayemi are not the only source of information concerning the counselled person’s mental health issues.
72. [72]
    As for the balance of PCC that may be held by either Zig Zag or Laurel House, the applicant merely contends that ‘[t]here is no reason to expect that they are any less probative that the other PCC document’. This contention has not been made good. All that is known is that in June 2017, at about the time the counselled person was speaking to the police about the other allegations of sexual abuse, she was also consulting Zig Zag and Laurel House. There is no reason to suppose that there was discussion of the present allegations, much less some inconsistent statement. Indeed, the conduct now alleged as count three is said to have occurred in late 2018 so could not have been discussed, and there is no reason to conclude the alleged 2016 offending was discussed. There is no basis for a conclusion that the records of Zig Zag or Laurel House contain PCC that will have substantial probative value.
73. [73]
    The applicant suggests that it is to be presumed the counselled person said nothing to counsellors at Zig Zag or Laurel House about the alleged conduct of the applicant in 2016. That is a reasonable inference to draw. A failure to report the alleged 2016 offences when discussing other sexual abuse is a matter relevant to the credibility of the counselled person. But even if it is assumed to be of substantial probative value, the difficulty for the applicant lies in the second criterion of section 14H(1), mentioned above. There is ample evidence to indicate that the first mention by the counselled person of the alleged 2016 offences was in early 2019. That is, other documents are available to form the basis of cross-examination or evidence to prove there was no complaint until 2019.
74. [74]
    The balance of the applicant’s submissions concerning the records of Zig Zag and Laurel House merely identify matters which, if they existed, might be substantially probative.^[75] But there is no argument as to why the inference should be drawn that material of this kind will be found in the PCC. The premise of the applicant’s arguments rests on the unproven assumption that there has been a discussion of the matters identified. The applicant has not proven any likelihood that this assumption is true, and as noted above, it is not for the court to inspect the documents to cure deficiencies in proof of the matters required by section 14H(1)(a).
75. [75]
    The only part of the records of Dr Jolayemi, Zig Zag or Laurel House that require further assessment against section 14H(1)(b) and (c) are those at pages 111 to 118 inclusive of the applicant’s bundle.
76. [76]
    The applicant also seeks leave to subpoena PCC from Child Safety. The applicant acknowledges that ‘the majority of the records … will likely not meet the definition of PCC’. Subject to the confidentiality provisions of the Child Protection Act 1999 (Qld), there is no impediment to the applicant compelling by subpoena the production of the documents that do not contain PCC. This application is only concerned with leave to subpoena PCC. The broad contention of the applicant concerning these records is set out in full below.

48. The records of the Department are likely to have substantial probative value as they would record any disclosures regarding the allegations against [the other offender] and the applicant. Any disclosures regarding the allegations that differ from that which was told to police would have substantial probative value.

49. Further any records which record concerns regarding the counselled person lying to her parents and others would also have substantial probative value as the counselled person’s credit will be directly in issue at any trial.

77. [77]
    Even if it is assumed that proof of the matters described above would have substantial probative value, something which I doubt,^[76] the applicant has not shown any likelihood information of this kind will be found in the PCC. The hope of a defendant that relevant material might be found in PCC is no substitute for the stringent test set by this legislation in section 14H(1)(a) and provides no foundation for the inspection of PCC by a judge.
78. [78]
    I am not satisfied the application has demonstrated that any PCC in the possession of Child Safety will have substantial probative value.

Application of section 14H(1)(b) and (c) to the substantially probative records

79. [79]
    It remains only to consider the application of section 14H(1)(b) and (c) to the PCC contained in pages 111 to 118 of the applicant’s bundle. Section 14H(1)(b) is satisfied. There is no suggestion of any other source of information concerning preliminary complaints made to Dr Jolayemi or a counsellor at Zig Zag. Section 14H(1)(c) requires satisfaction that the

public interest in admitting the communication into evidence substantially outweighs the public interest in:

1. preserving the confidentiality of the communication; and

2. protecting the counselled person from harm.

80. [80]
    One more curiosity in this provision is the reference to ‘admitting the communication into evidence’. It is not obvious what this should mean when applied to cases in which the leave being sought is to subpoena or inspect PCC, rather than to adduce evidence of it at a trial. It is most unlikely section 14H(1)(c) is only to operate in applications of the latter kind. The only sensible way to read the provision is as if it said, ‘the public interest in granting an application for leave substantially outweighs the public interest in…’. The application of section 14H(1)(c) requires consideration of the matters listed in section 14H(2). It may also involve consideration of a statement of harm.
81. [81]
    As I have already mentioned, the weight to be given to the matters raised by section 14H(1)(c) will vary according to what is being sought by applicant. While this application concerns the use of the PCC at the trial, it is a relevant consideration that the content of the PCC is already known to the parties. The PCC is no longer confidential. Of course, reference to the PCC at a trial may involve a somewhat wider dissemination, but not to any significant degree. It is also the case that further harm to the counselled person might result from the use of the PCC at the trial, even where its contents are already known. But again, having regard to the content of the PCC and its disclosure to date, the potential for further harm is slight.
82. [82]
    Having regard to the content of the PCC I am satisfied that the public interest in making it available for use substantially outweighs the public interest in preserving the confidentiality of the PCC and protecting the counselled person from harm.

Conclusion

83. [83]
    For these reasons, the applicant should have leave to use and adduce evidence of the PCC contained in pages 111 to 118 inclusive of the applicant’s bundle of material to the extent it relates to evidence of preliminary complaint. The application to use the PCC contained in Dr Jolayemi’s documents pertaining to a potential diagnosis of the counselled should be dismissed. The application to use the remaining PCC in the documents of Zig Zag and Laurel should be dismissed. The application for leave to subpoena PCC from Child Safety should be dismissed.
84. [84]
    The parties are to prepare and present to the court a draft order reflecting my decision.