R v HJE & HRB[2019] QDCPR 24

DISTRICT COURT OF QUEENSLAND

1. [1]
   The first and second applicant seek an order pursuant to s 14G of the Evidence Act 1977 (Qld) (“the Act”) for the production of protected counselling communications between the complainant and counsellors at the Bayside Child and Youth Mental Health Service.

Background

2. [2]
   The first applicant faces the following charges:

   1. Unlawfully procuring the complainant to commit and indecent act;
   2. Wilfully and unlawfully exposing the complainant to an indecent act;
   3. Unlawful and indecent dealing with the complainant;
   4. Unlawful and indecent dealing with the complainant;
   5. Wilfully exposing the complainant to an indecent film;
   6. Wilfully exposing his son to an indecent film;
   7. Raping the complainant;
   8. Unlawful carnal knowledge of the complainant;
   9. Unlawfully and indecently dealing with the complainant.
3. [3]
   The second applicant is presently before the court on an indictment charging her with three counts of indecent treatment of the complainant.  On two of these counts she is conjointly charged with the first applicant. 

Status of the matter

5. [4]
   The matter is presently listed for s 21AK prerecord hearing on 5 July 2019.  The matter does not yet have a trial listing.

Factual background

5. [5]
   I have not been supplied with particulars in the depositions.  I am therefore using the summary from the outline of submission for the second applicant. There has been no demurrer to this outline. 
6. [6]
   All offences allegedly occurred around March to May 2017.  The complaint was aged 15 at the time of the alleged offending.  At the relevant time she lived with her older sister and their mother in the house directly beside the house of the two accused.  She was a frequent visitor to their home and would often babysit their 20 month old child.  
7. [7]
   The complainant first made a complaint to her mother on 19 December 2017.  In that complaint she disclosed to her mother an allegation of sexual intercourse between herself and the first applicant which she claimed to have took place sometime in April 2017, at a time when she was alone with the first applicant and the second applicant was at a work party.  At this time there was no mention of any other alleged incident.  On 27 December 2017 the complainant participated in a s 93A taped interview and she repeated the allegation of sexual intercourse with the first applicant.  In addition she also claimed there was another occasion when she was left alone with the first applicant and complained about him getting her to masturbate him.  The interview closed down.  
8. [8]
   On 14 February 2018 the complainant child took part in another 93A interview.  During the course of that interview the complainant disclosed that she had been diagnosed with anxiety when she was 13.  In addition in this interview the complainant detailed an instance when she claims both defendants had sexual intercourse with each other in front of her with the lights off and that one of them, she cannot say who, “put two fingers in my vagina”.  It has emerged that the complainant had counselling at the Bayside Child and Youth Mental Health Service.

This application

9. [9]
   The prosecution appeared but made no submission, the counselled person being independently legally represented.  The complainant is a “counselled person” for the purposes of s 14B in that she “is being, or has at any time been, counselled by a counsellor and is, or has any time been, a victim or an alleged victim of a sexual assault offence”.  The complainant appeared represented by counsel and opposed the application.
10. [10]
    At the hearing of the application no counsellors appeared. 
11. [11]
    It was agreed at the hearing of the application that I should have access to, and inspect the documents before determining the application for leave and that can be done by the power in section (m) to facilitate the court’s consideration of the documents.  This complies with the New South Wales Authorities in respect of corresponding legislation and I accept those submissions.  I made an order that the counselling records be produced to me with the purpose of considering whether such counselling records were protected counselling communications and whether leave should be granted to issue a subpoena in the terms sought.
12. [12]
    The application was adjourned and on Wednesday 19 June 2019 I received the records which I read in chambers.  At this time they were not provided to the parties or legal representatives who appeared on the application.

Submission in relation to making documents available to the second applicant

13. [13]
    The first applicant agreed with the course so far pursued and made no application to be present when I examined the documents or to have access to the documents.

Protected counselling communication 

14. [14]
    Section 14A provides:

1. A protected counselling communication 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.

15. [15]
    Subsection 3 provides:

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.

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.”

New South Wales cases

16. [16]
    The court must give reasons for granting or refusing to grant the application (s 14H(6)).  As the New South Wales Court of Criminal Appeal has observed in KS v Veitch (No 2) (2012) 84 NSWLR 172 at 188 that requirement is fraught with difficulties.  A judge determining a matter is likely to have available the documents sought.  But that material cannot be made available and should not be referred to in a way which discloses its contents.  Therefore any description of the material in these reasons is necessarily circumscribed. 

The legislative scheme

“[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. 

37. [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 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. 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. 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.

38. [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.
39. [39]
    By virtue of section 14F, a person cannot without the leave of the court:

    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.’

40. [40]
    Under section 14H(1) the court cannot grant leave unless it 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. (i)
          preserving the confidentiality of the communication; and
       2. (ii)
          protecting the counselled person from harm.’
41. [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. 
42. [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. ‘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.’”

First limb: “substantial probative value”

17. [17]
    As pointed out in R v JML the court must be satisfied that the protected counselling communication “will” have substantial probative value.  As her Honour Judge Fantin said in JML “The use of “will” (rather than “may”) connotes future certainty, or at the very least, likelihood, rather than mere possibility.” I am also happy to adopt what Judge Fantin said in respect of the meaning of substantive probative value:

    38. [48]
        “Dictionary meanings of “probative” include affording proof or evidence or tending or serving to prove.
    39. [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. In order for evidence to be probative, it must render a fact in issue more probable than it would be without the evidence.
    40. [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. There must be a logical connection between the evidence and the fact in issue.
    41. [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.
    42. [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.
    43. [53]
        A defendant may seek access to documents in order to formulate lines of cross-examination, 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. It may be possible to formulate a line of cross-examination without seeking to admit into evidence the document.
    44. [54]
        The "substantial probative value" test is more exacting than the "legitimate forensic purpose" test that normally applies to an application for a subpoena.  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.
    45. [55]
        “Substantial” is a word that may have different meanings, depending on the context.  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.
    46. [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.
    47. [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.”
18. [18]
    In this case the defence case currently appears to be that the alleged sexual assaults did not occur so the central question in respect of each of the charges is whether the complaint is a truthful and reliable witness.

Submissions

19. [19]
    The first applicant submits that the protected counselling communications have substantial probative value because of the following aspects:

    1. The complainant has seen two psychiatrist, one psychologist and numerous other counsellors for several years prior to the events that are in dispute in the proceedings;
    2. The statement of the applicant indicates the complainant may have made similar allegations against unrelated parties and the counselling communications may contain evidence of those other allegations;
    3. There are factual grounds to suggest the complainant may have made inconsistent statements.  The complaint stated that an offence occurred on the night when the co-accused, HRB, attended a work party which the evidence suggests occurred much later in the year than when the complainant indicated the event took place in April 2017;
    4. The complainant may have disclosed her attitude towards the applicant which may have caused her to make allegations;
    5. There may be underlying psychiatric disorders diagnosed that impact on the reliability of the complainant;
    6. The counsellors may have expressed their expert opinion on the truthfulness or reliability of the complainant; and
    7. The fact that the counselling communications predate the alleged offending does not limit their probative value because it is the psychiatric and psychological makeup of the complainant that is in issue. 
20. [20]
    The second applicant submitted:

“Without limiting the possible appropriate matters for consideration in this regard the applicant suggests the following is a non-exhaustive list:

1. Any notes in which the complainant has discussed her dealing with either applicant;
2. Any notes in which the complainant has discussed her feelings towards either applicant;
3. Any notes in which there is any suggestion of prior sexual conduct with either applicant;
4. Any notes in which it is recorded that the complainant has a history of false accusation or gross exaggeration;
5. Any notes in which it is recorded that the complainant has engaged in attention seeking behaviour beyond what might reasonably be expected of an adolescent girl.”

21. [21]
    I have kept the submissions firmly in mind but I am of the view that the protected counselling communication does not have substantial probative value whether by itself or having regard to other documents or evidence.

22. [22]
    The application therefore fails and it is unnecessary for me to consider the two other limbs. The applications are dismissed.