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The Queen v JML[2019] QDCPR 23

DISTRICT COURT OF QUEENSLAND

CITATION:

R v JML [2019] QDCPR 23

PARTIES:

THE QUEEN

(Respondent)

v

JML

(Applicant)

FILE NO/S:

581/2018

DIVISION:

Criminal

PROCEEDING:

Application 

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

13 June 2019 

DELIVERED AT:

Cairns

HEARING DATE:

4 April, 27 and 29 May 2019 

JUDGE:

Fantin DCJ

ORDER:

Application dismissed.

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – sexual assault counselling privilege – whether leave should be granted to issue a subpoena for the production of a protected counselling communication – whether the parties should be at liberty to inspect and photocopy the protected counselling communication – whether the protected counselling communication will have substantial probative value – whether other documents or evidence concerning the matters are not available – whether the public interest in admitting the communication outweighs the public interest in preserving the confidentiality of the communication and protecting the counselled person from harm

Legislation

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

Cases

DPP v Kilbourne [1973] 1 All ER 440

DPP v Paulino [2017] VSCA 38

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

R v Lockyer (1996) 89 A Crim R 457

NAR v PPC1 (2013) 224 A Crim R 535

Rohan v R [2018] NSWCCA 89

Washer v Western Australia (2007) 234 CLR 492

COUNSEL:

J Sheridan for the Applicant 

G Meoli for the Respondent 

M Dalton for the Counselled Person

SOLICITORS:

Osborne Butler Lawyers for the Applicant 

Cairns Office of the Director of Public Prosecutions for the Respondent 

Women’s Legal Service for the Counselled Person 

Issue

  1. [1]
    The defendant applicant is charged with sexual offences against his stepdaughter, M, when she was 10 to 13 years old.[1] For several months during that period, M saw a counsellor. Should the defendant be granted leave to subpoena M’s counselling records in order to use them at his trial? For the reasons set out below, the answer is no.

Factual background

  1. [2]
    In 2010 M’s mother (an American citizen) met the defendant on the internet. She moved to a small regional town in Australia to live with him. They married. M initially stayed with her father in the United States before moving to Australia to live with her mother and the defendant. 
  2. [3]
    The offending is alleged to have occurred over a period of three years and eight months, between 2013 and 2017. 
  3. [4]
    The Crown particulars of the allegations are summarised below. 
  4. [5]
    Count 1 involves multiple occasions of digital penetration of M’s vagina, licking her vagina, touching her breast, and saying to her words to the effect “he had a great play with her last night”, “he loved her in a way that’s not fatherly” and “he would pay her $50 if she would let him eat her out”.  
  5. [6]
    Counts 2 and 3 involve taking photographs of M while she was naked in the shower.
  6. [7]
    Count 4 involves hitting M in the stomach.
  7. [8]
    Count 5 involves touching M’s breasts.
  8. [9]
    Count 6 involves hitting M with a stick a number of times.
  9. [10]
    The allegations came to light after the defendant allegedly assaulted M on 26 August 2017 (count 6).
  10. [11]
    M participated in four interviews with police: two on 30 August 2017, one on 31 August 2017, and one on 17 October 2017. I have considered the edited transcripts of those interviews for the purposes of the application.
  11. [12]
    Following M’s disclosures, M’s mother supported the defendant and remained living with him. The Department of Child Safety removed M from their care and placed her in out of home care, where she remains. She has only intermittent contact with her mother. She has only sporadic contact with her biological father in the United States via social media. He has a history of drug use.
  12. [13]
    In the course of proceedings for guardianship orders, the Department disclosed documents indicating that M had attended counselling at the district community centre between 8 August 2016 and 6 March 2017. 
  13. [14]
    The period of counselling falls within the date range of count 1 (maintaining), and count 3 (indecent treatment) but outside the dates alleged for the other counts. It is after the date range in count 2 (indecent treatment) but before the dates of count 4 (common assault), count 5 (indecent treatment) and count 6 (assault occasioning bodily harm).
  14. [15]
    According to Department of Child Safety documents provided by the defendant, the complainant had had counselling with the community centre in the past, had issues with self harm and had experienced difficulties at school. In February 2017 the defendant contacted M’s school and asked if the guidance officer could organise counselling with the community centre, referring to a similar arrangement to last year when their family was affected by a recent homicide in the town and the counselling had worked well.
  15. [16]
    Therefore this is not a case where the counselling was provided by a specialist sexual assault counselling service after disclosures of the alleged offending, and where the counselling was specifically with respect to the alleged offences. 
  16. [17]
    Although the period of the counselling here was partly contemporaneous with the charges, it appears to have been initiated for reasons not directly referable to the alleged offending.

Procedural history

  1. [18]
    In discussions with the Department of Child Safety, the defendant admitted the assault which forms count 6, but denied the sexual offending. He intends to enter a plea of not guilty. The proceeding was initially listed for an affected child hearing.  That hearing was vacated when the defendant filed this application.
  2. [19]
    The defendant applies for leave to issue a subpoena to the counselling service to compel it to produce a “protected counselling communication” to the court, and to inspect and copy those documents.[2] 
  3. [20]
    The application was served[3] on each of the Crown, the “counselled person”[4], and the counsellor.
  4. [21]
    The Crown appeared but made no submissions other than to “maintain a neutral position with respect to the application”[5], having regard to the counselled person being independently legally represented.  
  5. [22]
    The counselled person or counsellor may appear in the proceeding.[6] 
  6. [23]
    The complainant, M, is a “counselled person” for the purposes of section 14B in that she “is being, or has at any time been, counselled by a counsellor and is, or has at any time been, a victim or an alleged victim of a sexual assault offence.” [24] M is now 15 years old. She appeared by counsel and opposed the application. 
  1. [25]
    The counsellor did not appear.
  2. [26]
    The prohibition in section 14F bites at an early stage, and its primary purpose is to prevent any person other than the persons who are party to the counselling communication having access to the contents of the document.[7] 
  3. [27]
    In the absence of leave, production, even voluntary production, is forbidden by section 14F subject, however, to the power of the court to make an order for production. 
  4. [28]
    I heard submissions about the appropriate procedure to be adopted in determining the application.[8] The active parties both submitted that I should have access to, and inspect the documents before determining the application for leave, and that that could be done by the power in section 14M to facilitate the court’s consideration of the documents.  
  5. [29]
    After considering the New South Wales authorities, I accepted those submissions. I made an order that the counselling records be produced to the court for the purpose of considering whether such counselling records were protected counselling communications and whether leave should be granted to issue the subpoena in the terms sought.[9]  I directed the Registrar to provide a copy of the order to the counselling service.
  6. [30]
    The application was adjourned part heard to enable that to occur.
  7. [31]
    The documents were produced only to the court. I read them in chambers. The documents were limited in number and scope. They were not provided to the parties or the legal representatives who appeared on the application. 
  8. [32]
    Having considered the documents, I am satisfied that they constitute a “protected counselling communication” as relevantly defined in section 14A:

“(1) A protected counselling communication is an oral or written communication made in confidence—

  1. (a)
    by a counselled person to a counsellor; or
  2. (b)
    by a counsellor to or about a counselled person to further the counselling process; or
  3. (c)
    about a counselled person by a parent, carer or other support person who is present to facilitate communication between the counselled person and a counsellor or to otherwise further the counselling process.
  1. (2)
    … 
  2. (3)
    For subsection (1) it does not matter whether the communication was made—
    1. before or after the act or omission constituting the sexual assault offence committed or allegedly committed against the counselled person occurred; or
    2. in connection with the sexual assault offence, or a condition arising from the sexual assault offence, committed or allegedly committed against the counselled person.
  3. (4)
    A reference in this division to a protected counselling communication includes a reference to—
    1. a document to the extent it contains a protected counselling communication; or
    2. evidence to the extent it discloses a protected counselling communication.”
  1. [33]
    Notably, the privilege is not limited to counselling arising from or relating to the alleged sexual assault offence. It applies to counselling communications the alleged victim of a sexual assault offence has had at any time with a counsellor.
  2. [34]
    After considering the records produced to the court, I heard further oral and written submissions from the parties.
  3. [35]
    The court must give reasons for granting or refusing to grant the application.[10] As the New South Wales Court of Criminal Appeal has observed[11], that requirement is fraught with difficulties. A judge determining a matter is likely to have available (as I did) both the documents sought and a confidential statement made to the court by the complainant. But that material cannot be made available and should not be referred to in reasons in a way which discloses its contents.  Therefore any description of the material in these reasons is necessarily circumscribed.

The legislative scheme 

  1. [36]
    The sexual assault counselling privilege scheme is contained in Division 2A of the Evidence Act 1977. It was inserted by the Victims of Crime Assistance and Other Legislation Amendment Act 2017, effective 1 December 2017.
  2. [37]
    The Explanatory Notes to the Victims of Crime Assistance and Other Legislation Amendment Bill 2016 outline the policy objective for introducing a sexual assault counselling privilege:[12]
    1. (a)
      A person’s private, psychological and physical boundaries are invaded during a sexual assault and the harm inflicted on an individual can have long-term impacts. Sexual assault counselling services play an integral role in assisting people to recover;
    2. (b)
      Since the late 1990s, all other Australian jurisdictions have introduced some form of statutory evidential privilege to limit the disclosure and use of sexual assault counselling communications during legal proceedings. These statutory protections seek to recognise the public interest in encouraging people who have been sexually assaulted to seek therapy to assist in their recovery and may also encourage them to report the crime to police; and
    3. (c)
      Recommendation 130 of the Domestic and Family Violence Task Force Report Not Now, Not Ever: Putting an End to Domestic and Family Violence in Queensland released on 28 February 2015 was that the Queensland government introduce a sexual assault counselling privilege, based on the New South Wales legislative model, which provides an absolute privilege in preliminary proceedings and a qualified privilege in other proceedings. In accepting this recommendation, the Queensland government acknowledged the benefits of the NSW model as it seeks to ensure the appropriate balance in each case between the right to a fair trial and the public interest in preserving the confidentiality of counselling communications.
  3. [38]
    The scheme seeks to balance the competing public interests of ensuring the fair trial of an accused with respecting the privacy of counselling communications.
  4. [39]
    By virtue of section 14F, a person cannot without the leave of the court:[13]
    1. (a)
      “compel, whether by subpoena or otherwise, another person to produce a protected counselling communication to a court;
    2. (b)
      produce to a court, adduce evidence of or otherwise use, a protected counselling communication; 
    3. (c)
      otherwise disclose, inspect or copy a protected counselling communication.”
  5. [40]
    Under section 14H(1) the court cannot grant leave unless it is satisfied that:[14]
    1. (a)
      “the protected counselling communication the subject of the application will, by itself or having regard to other documents or evidence produced or adduced by the applicant, have substantial probative value; and
    2. (b)
      other documents or evidence concerning the matters to which the communication relates are not available; and 
    3. (c)
      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.” 

[emphasis added]

  1. [41]
    The use of the conjunctive “and” in this enumeration makes it clear that the court cannot grant leave unless it is satisfied of each of the three requirements.
  2. [42]
    In deciding the third requirement, the public interest question, subsection 14H(2) provides that the court must have regard to the following matters:
    1. (a)
      “the need to encourage victims of sexual assault offences to seek counselling;
    2. (b)
      that the effectiveness of counselling is likely to be dependent on maintaining the confidentiality of the counselling relationship;
    3. (c)
      the public interest in ensuring victims of sexual assault offences receive effective counselling;
    4. (d)
      that disclosure of the protected counselling communication is likely to damage the relationship between the counsellor and the counselled person;
    5. (e)
      whether disclosure of the communication is sought on the basis of a discriminatory belief or bias;
    6. (f)
      that the disclosure of the communication is likely to infringe a reasonable expectation of privacy;
    7. (g)
      the extent to which the communication is necessary to enable the accused person to make a full defence;
    8. (h)
      any other matter the court considers relevant.”
  3. [43]
    For deciding the application, the court may consider a written or oral statement made to the court by the counselled person outlining the harm that person is likely to suffer if the application is granted.[15] 
  4. [44]
    M made a written statement to the court in the form of an affidavit, which I have read and taken into account. The court must not disclose, or make available to a party to the proceeding, that statement.[16]  The statement was placed in a sealed envelope and marked accordingly.
  5. [45]
    I was informed by the parties that there were no Queensland decisions on these provisions. I was particularly assisted by New South Wales decisions which have considered corresponding provisions.

First limb: “substantial probative value”

  1. [46]
    It is important to bear in mind that the court must be satisfied that the protected counselling communication “will” have substantial probative value. The use of “will” (rather than “may”) connotes future certainty, or at the very least, likelihood, rather than mere possibility. 
  2. [47]
    “Substantial probative value” is not defined in the Act. 
  3. [48]
    Dictionary meanings of “probative” include affording proof or evidence[17] or tending or serving to prove.[18] 
  4. [49]
    At common law, evidence has been said to be probative or have probative force if it increases or diminishes the probability of the existence of a fact in issue.[19] In order for evidence to be probative, it must render a fact in issue more probable than it would be without the evidence.
  5. [50]
    That can be determined only by an analysis of the facts in issue in the proceedings, and the circumstances which bear upon the question of probability. It also requires consideration of the process of reasoning by which information as to the fact could rationally affect the assessment of the probabilities. In order to establish relevance, it is necessary to point to a process of reasoning by which the information in question could affect the Jury’s assessment of the probability of the existence of a fact in issue at the trial.[20] There must be a logical connection between the evidence and the fact in issue.
  6. [51]
    The protected counselling communication must not be looked at in isolation. It must also be considered having regard to other documents or evidence produced or adduced by the applicant.[21]
  7. [52]
    It is the use which might be made of the documents by the party seeking access which must be the focus of the court’s attention.[22] 
  8. [53]
    A defendant may seek access to documents in order to formulate lines of crossexamination, for example by suggesting that the complainant has made inconsistent statements to a counsellor in relation to the circumstances of the offence, or by using material in the records to suggest the complainant may be unreliable.[23]  It may be possible to formulate a line of cross-examination without seeking to admit into evidence the document.
  9. [54]
    The "substantial probative value" test is more exacting than the "legitimate forensic purpose" test that normally applies to an application for a subpoena.[24]  It constitutes a significant reduction in the material which might be made available to the defendant under general law with respect to access to material under subpoena.[25]
  10. [55]
    “Substantial” is a word that may have different meanings, depending on the context.[26] The requirement that the protected counselling communication must have “substantial probative value” should be construed in a way that best achieves the purpose of the legislative scheme. In my view, in the context in which that expression is used, the adjective “substantial” connotes very important, ample or considerable. “Substantial probative value” requires a higher standard of relevance than significant probative value, which itself connotes something more than mere relevance.[27] 
  11. [56]
    The concept of “substantial probative value”, accepting that it extends to questions or evidence relevant to the credibility of the complainant, must nevertheless be concerned with admissible material.[28]
  12. [57]
    If the protected counselling communication cannot render a fact in issue more probable than it would be without the evidence, it will not have probative value, let alone substantial probative value.
  13. [58]
    The principal fact in issue is: was the complainant sexually assaulted by her stepfather? The defence case currently appears to be that the alleged sexual assaults did not occur. Given that there were only two people present when this is alleged to have occurred, the central question is whether M is a truthful and reliable witness. 
  14. [59]
    Defence counsel submitted that the counselling records “could very well touch upon” the following three matters[29], said to go to M’s credibility:
    1. (a)
      “The relationship of the complainant with the defendant (if described in a positive way then that would be inconsistent with the defendant having had illicit sexual dealings with the complainant [sic] (the submission to the jury would be made to that effect)”. 

I will refer to this as “positive descriptions evidence”.

  1. (b)
    “That no complaint was made at all when discussing personal matters with the counsellor. The purpose behind [sic] with which this evidence is sought to be obtained is that it could be expected that the counsellor in question gained [sic] degree of trust from the complainant over a relatively long period of time. The absence of any complaint made by the complainant to the counsellor about this alleged offending would be telling against the credibility of the complainant.” 

I will refer to this as “no complaint evidence”.

  1. (c)
    “It might potentially disclose a motivation for the making up of the assault against the defendant [sic].”  

I will refer to this as “motive for a false complaint evidence”.

  1. [60]
    I will make some general comments about these propositions and then consider them in the particular circumstances of this case. Even assuming the protected counselling communication were to contain evidence of those matters, will that evidence, by itself or having regard to other documents or evidence produced or adduced by the applicant, have substantial probative value?
  2. [61]
    I will deal with the second of the three propositions first.

No complaint evidence

  1. [62]
    In this case the maintaining (count 1) is alleged to have occurred over a period of three years. The complainant M first made a complaint to police within days after the offending alleged to constitute counts 4, 5 and 6.  
  2. [63]
    The counselling occurred during the latter period of the alleged offending, when M was 12 to 13 years old. 
  3. [64]
    The counselling ended in March 2017, almost six months before M disclosed the offending to anyone or first made a complaint to police in late August 2017.  
  4. [65]
    Defence counsel submitted that the absence of any complaint made by the complainant to the counsellor about this alleged offending would be telling against the credibility of the complainant. That submission is misconceived for a number of reasons. 
  5. [66]
    First, the submission is speculative and based on assumptions. 
  6. [67]
    Second, it would be quite wrong to make an assumption about whether M had or should have disclosed the alleged offending to the counsellor. Care must be taken generally to avoid making erroneous or poorly based stereotypical assumptions about how complainants in sexual assault cases did or should behave.  The stereotype that delay in making a complaint about an alleged sexual offence is invariably a sign that the complainant’s evidence is false, or that a victim will raise a complaint at the first reasonable opportunity, has been the subject of much criticism as well as statutory response.[30] There may be good reason why a person, particularly a child, might delay making or fail to make a complaint about a sexual assault.  
  7. [68]
    Third, it is also important to bear in mind the particular circumstances of this case. The child was young. She was living with the alleged perpetrator. He was a family member in a position of power and parental authority. He is alleged to have used actual violence against her. The child had no other family support in the town. The child saw the counsellor for reasons not directly related to the incidents giving rise to the offences.  And the counselling occurred before the child had made any disclosure or complaint to any person about the alleged offences.  
  8. [69]
    Fourth, there is other evidence available which is relevant to why M might not have complained at that time. 
  9. [70]
    In her statement to police, M said “I never told [her mother] about the touching or anything. ‘Cause I was scared that she was gonna let him know that she knew.”[31] When asked in a later interview later whether she had told her mum what happened, M said: “I was scared that she would go t-, and tell him and that he would try to hurt me.”[32]
  10. [71]
    M also said “And he’d say things like stop being a baby and things like that. … I wouldn’t retaliate because I was scared of what would happen if I did.”[33]  When asked whether she had said anything to the defendant, M said “No. I was too scared if I did I’d get hurt. … I wouldn’t say anything because I was too scared of what would happen if I did say something.”[34]  
  11. [72]
    M also said “He keeps saying it’s ‘cause he loves me. He keeps saying he’s doing all of this ‘cause he loves me.”[35] And later “And I can remember him telling me in the car once he went on this whole thing about how he wasn’t sexually attracted to mum and that he loved me in a way that’s not fatherly and that if I told mum it’d break her heart. And he just said, I’d never break my mother’s heart so I wouldn’t tell her.”[36] 
  12. [73]
    In those particular circumstances, evidence of there being no complaint in the counselling records could not have substantial probative value in relation to the complainant’s credibility.[37]  

Positive descriptions evidence

  1. [74]
    In my view, this proposition suffers from the same flaws as the “no complaint” submission, for the reasons explained above.
  2. [75]
    Even if M had mentioned the defendant or her interactions or relationship with him in some positive way, that would not necessarily be inconsistent with the defendant having committed the alleged offences. Positive descriptions of the defendant may simply be consistent with her being unable to properly rationalise the inappropriate nature of the relationship, particularly where the defendant had told her he was doing it because he loved her.
  3. [76]
    In the particular circumstances of this case, such evidence could not have substantial probative value in relation to the complainant’s credibility.

Motive for a false complaint evidence

  1. [77]
    I accept that if there were evidence in the communications giving rise to a possible motive for a false complaint that could have probative value. 
  2. [78]
    However there is already other evidence relevant to this issue.  
  3. [79]
    M first disclosed the offending to police on 30 August 2017 after the defendant allegedly hit her multiple times with a stick on 26 August 2017 (count 6).
  4. [80]
    That followed an earlier alleged assault on 20 August 2017 involving the defendant hitting M in the stomach (count 4). 
  5. [81]
    The child safety records indicate that the defendant was physically abusive towards M and that the defendant admitted assaulting her as a disciplinary measure. They also suggest that M’s mother advised that M was angry because she had a lot of restrictions placed on her. 
  6. [82]
    That material already provides potential motives for a false complaint and a basis for lines of cross examination. Therefore it cannot be said that there is no other evidence available with respect to this issue.

Conclusion on substantial probative value

  1. [83]
    Having regard to the defendant’s submissions and what the protected counselling communication in fact contains, I am not satisfied that the communication will, by itself or having regard to other documents or evidence, have substantial probative value. 
  2. [84]
    The contents of the communication do not have substantial probative value to the facts in issue, the reliability of the complainant’s evidence or issues of her credit. 
  3. [85]
    Therefore the application fails at the first hurdle. It does not meet the first of the three limbs of the test in section 14F.  
  4. [86]
    For the purposes of determining this application, it is unnecessary for me to consider the other two limbs.
  5. [87]
    However as a matter of caution and for completeness, I have considered the other two limbs of the test.

Second limb: no other evidence is available

  1. [88]
    The second limb or precondition (section 14H(1)(b)) is that other documents or evidence concerning the matters to which the communication relates are not available.  
  2. [89]
    It is intended to prevent access to protected counselling communications where relevant material is available from another source, such as the complainant’s statements to police.[38] 
  3. [90]
    Other than the transcripts of M’s interviews with police and the other documents I have referred to, the parties did not identify what other documents or evidence were or were not available relating to those issues and the material sought. 
  4. [91]
    As I have explained above, the three matters raised by the defence counsel are matters about which other evidence may well be available. In addition, other witnesses, such as M’s mother, could conceivably give evidence of the relationship between M and the defendant, and of possible motives for a false complaint.  
  5. [92]
    Therefore I cannot be satisfied of the second limb of the test, that there was no other evidence of these matters available.  

Third limb: weighing the competing public interests

  1. [93]
    The third limb or precondition (section 14H(1)(c)) is that the public interest in admitting the communication into evidence “substantially outweighs” the public interest in preserving the confidentiality of the communication and in protecting the counselled person from harm. 
  2. [94]
    This requirement “imposes an additional and significant constraint. It requires that two competing public interests be considered, with access being conditional upon the public interest in protection of confidences being “substantially outweighed” by the interest in admitting the material into evidence.”[39]
  3. [95]
    The requirement assumes that the communication has substantial probative value and therefore that there is a public interest in admitting the communication into evidence to enable the defendant to test the credibility and reliability of M’s account. 
  4. [96]
    It must be weighed against a public interest comprising two separate limbs: the first addressing the public interest in maintaining protected confidences generally, and the second relating to possible harm to the counselled person in question.
  5. [97]
    Although the balancing exercise is weighted against disclosure, that course is nevertheless permitted where the court is satisfied that the public interest in such an outcome substantially outweighs the countervailing considerations.[40]
  6. [98]
    I am not permitted to disclose the contents of the statement from the counselled person, M. 
  7. [99]
    Nonetheless, having regard to the evidence before me, the submissions, the mandatory matters in section 14H(2) and M’s statement to the court, I find that:
  1. (a)
    If the application were granted M is likely to suffer psychological or emotional harm;
  2. (b)
    M participated in the counselling on the basis that it was confidential and it afforded her a safe space in which to discuss different matters;
  3. (c)
    Disclosure of the communication:
  1. is likely to damage the relationship between M and the counsellor;
  2. may also damage the relationship between M and other family members;
  3. is likely to infringe a reasonable expectation held by M that the communication would be private;
  4. will inhibit M from participating in counselling now and in the future, whether related to the alleged offences or for any other reason; and
  5. is not necessary to enable the defendant to make a full defence.
  1. [100]
    Therefore, I am not satisfied that the public interest in admitting the communication into evidence substantially outweighs the public interest in preserving the confidentiality of the communication and protecting M from harm.  

Conclusion

  1. [101]
    In conclusion, I am not satisfied of any of the limbs of the test in section 14H, let alone all of them. 
  2. [102]
    The application is dismissed.

Footnotes

[1] Count 1 - Maintaining a sexual relationship with a child between 29 November 2013 and 22 August 2017 (domestic violence offence); Count 2 - Indecent treatment of a child under 16, under 12, as a guardian, between 29 November 2013 and 30 November 2015 (domestic violence offence); Count 3 - Indecent treatment of a child under 16, as a guardian, between 1 June 2016 and 30 June 2017 (domestic violence offence); Count 4 - Common assault on or about 20 August 2017 (domestic violence offence); Count 5 - Indecent treatment of a child under 16, as a guardian, on or about 20 August 2017 (domestic violence offence); Count 6 - Assault occasioning bodily harm, whilst armed, on or about 26 August 2017 (domestic violence offence).

[2] Pursuant to section 14G(1) of the Evidence Act 1977.

[3] Section 14G(2) and (4).

[4] Section 14B.

[5] Outline of Submissions on Behalf of the Respondent pa 2.1.

[6] Section 14L(2).

[7] KS v Veitch (No 2) (2012) 84 NSWLR 172 at 178, [23]; Rohan v R [2018] NSWCCA 89 at [4].

[8] including by reference to KS v Veitch (No 2) at 180, [28] and 191, [85]; NAR v PPC1 (2013) 224 A Crim R 535 and Rohan v R [2018] NSWCCA 89. 9 pursuant to subsections 14M(2) and (4).

[9] pursuant to subsections 14M(2) and (4).

[10] Section 14H(6).

[11] KS v Veitch (No 2) at 188, [69].

[12] page 2.

[13] Section 14F.

[14] Section 14H(1).

[15] Section 14H(3)

[16] Section 14H(5).

[17] Macquarie dictionary, revised third edition 2005.

[18] Garner B, A Dictionary of Modern Legal Usage, 1987.

[19] DPP v Kilbourne [1973] 1 All ER 440, cited with approval in DPP v Paulino [2017] VSCA 38 at [65].

[20] Washer v Western Australia (2007) 234 CLR 492 at 498, [5]. The definition of relevance there was taken from the Evidence Act 1995 (Cth), s 55. That legislation does not apply in the present case but the definition is said to reflect the common law: see DPP v Paulino at [66] fn 53.

[21] Section 14H(1)(a).

[22] KS v Veitch (No 2) at 180, [30].

[23] KS v Veitch (No 2) at 180, [31].

[24] NAR v PPC1 (2013) 224 A Crim R 535 at [57].

[25] KS v Veitch (No 2) at 180, [32].

[26] DPP v Paulino [2017] VSCA 38 at [9].

[27] in Rohan v R [2018] NSWCCA 89 the Court of Criminal Appeal noted with apparent approval observations by the primary judge referring to a definition of “significant probative value” by Hunt CJ in R v Lockyer(1996) 89 A Crim R 457 at 459.

[28] KS v Veitch (No 2) at 181, [37].

[29] Applicant’s Outline of Submissions [23].

[30] See section 4A Criminal Law (Sexual Offences) Act 1978 (Qld). A number of law reform commission reports on jury directions and sexual offences (in Queensland, New South Wales and Victoria) have considered this issue.

[31] Affidavit of Emily Thambyah, exhibit ET-2, page 16.

[32] Affidavit of Emily Thambyah, exhibit ET-4, page 10.

[33] Affidavit of Emily Thambyah, exhibit ET-4, page 3.

[34] Affidavit of Emily Thambyah, exhibit ET-4, page 12.

[35] Affidavit of Emily Thambyah, exhibit ET-3, page 2.

[36] Affidavit of Emily Thambyah, exhibit ET-5, page 19.

[37] See also Rohan v R [2018] NSWCCA 89 per Hulme J at [87] - [89] where a similar argument was rejected, albeit in a slightly different statutory framework.

[38] KS v Veitch (No 2) at 180, [33].

[39] KS v Veitch (No 2) at 180-1, [34] and 181, [36]. 40 KS v Veitch (No 2) at 181, [36].

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Editorial Notes

  • Published Case Name:

    The Queen v JML

  • Shortened Case Name:

    The Queen v JML

  • MNC:

    [2019] QDCPR 23

  • Court:

    QDCPR

  • Judge(s):

    Fantin DCJ

  • Date:

    13 Jun 2019

Appeal Status

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