R v DN[2019] QDCPR 45

DISTRICT COURT OF QUEENSLAND

1. [1]
   The applicant has been charged on indictment with one count of sexual assault and one count of rape of the complainant T. By way of amended application filed on 20 August 2019, the following orders are sought:

1. (a)
   Pursuant to s 14G(3)(a) of the Evidence Act 1977 (Qld), leave is sought of the court to subpoena “protected counselling communication records”;

2. (b)
   Pursuant to s 14G(3)(b) of the Evidence Act 1977 those records relate to sexual assault counselling records and other records concerning T in relation to records related to counselling at Headspace Meadowbrook;

3. (c)
   Pursuant to s 14G(3)(c) of the Evidence Act 1977 if the counsellor or counselled person to whom the records of communication relates may appear in the proceeding under s 14L of the Evidence Act.

Background facts

2. [2]
   The applicant was 35 years of age at the time of the alleged offending. The complainant T was 16 years of age at the time.

3. [3]
   T stayed at the applicant’s house and consumed a relatively large amount of liquor. She went to bed either late in the evening or in the early hours of the following morning. She awoke at about 4am to get a drink of water, and then went back to her room and back to bed. She awoke to the applicant touching her breast and felt his hand between her legs rubbing her vagina; he was rubbing the inside of her vulva but had not inserted his finger into her vagina. She punched the applicant, pulled her pants up and got out of bed. She went to another bedroom and contacted her mother who collected her from the house.

4. [4]
   There is preliminary complaint evidence, including from T’s mother, who states that she booked the complainant to receive counselling from the organisation “Headspace” at Meadowbrook.

5. [5]
   The applicant took part in a police interview and denied any wrongdoing. He specifically denied the suggestion that he may have committed the offences but could not remember it.

The relevant legislation

6. [6]
   The meaning of “protected counselling communication” is provided by s 14A Evidence Act 1977 (“the Act”):

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

(a) by a counselled person to a counsellor; or

(b) by a counsellor to or about a counselled person to further the counselling process; or

(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.”

7. [7]
   Relevantly, a person cannot compel, whether by subpoena or otherwise, another person to produce a protected counselling communication to a court other than by the leave of the court: s 14F of the Act.

8. [8]
   A party to a proceeding may apply for leave of the court pursuant to s 14G of the Act, which sets out the steps that need to be taken for such an application to be made.

9. [9]
   The question of whether any application for leave should be granted is governed by s 14H of the Act, which states as follows:

“(1) The court cannot grant an application for leave under this subdivision unless the court is satisfied that—

1. (a)
   the protected counselling communication the subject of the application will, by itself or having regard to other documents or evidence produced or adduced by the applicant, have substantial probative value; and

1. (b)
   other documents or evidence concerning the matters to which the communication relates are not available; and

1. (c)
   the public interest in admitting the communication into evidence substantially outweighs the public interest in—

1. (i)
   preserving the confidentiality of the communication; and

1. (ii)
   protecting the counselled person from harm.

1. (2)
   In deciding the matter mentioned in subsection (1)(c), the court must have regard to the following matters—

1. (a)
   the need to encourage victims of sexual assault offences to seek counselling;

1. (b)
   that the effectiveness of counselling is likely to be dependent on maintaining the confidentiality of the counselling relationship;

1. (c)
   the public interest in ensuring victims of sexual assault offences receive effective counselling;

1. (d)
   that disclosure of the protected counselling communication is likely to damage the relationship between the counsellor and the counselled person;

1. (e)
   whether disclosure of the communication is sought on the basis of a discriminatory belief or bias;

1. (f)
   that the disclosure of the communication is likely to infringe a reasonable expectation of privacy;

1. (g)
   the extent to which the communication is necessary to enable the accused person to make a full defence;

1. (h)
   any other matter the court considers relevant.

1. (3)
   For deciding the application, the court may consider a written or oral statement made to the court by the counselled person outlining the harm the person is likely to suffer if the application is granted.

1. (4)
   If an oral statement is made by the counselled person under subsection (3), while the statement is being made the court must exclude from the room in which the court is sitting—

1. (a)
   anyone who is not an essential person; and

1. (b)
   an essential person, if—

1. (i)
   the counselled person asks that the essential person be excluded; and

1. (ii)
   the court considers excluding the essential person would serve a proper interest of the counselled person.

1. (5)
   The court must not disclose, or make available to a party to the proceeding, a statement made to the court under subsection (3).

1. (6)
   The court must state its reasons for granting or refusing to grant the application.

1. (7)
   If the proceeding is a trial by jury, the court must hear and decide the application in the absence of the jury.

1. (8)
   In this section—

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

10. [10]
    A counselled person can waive the privilege, if the conditions in s 14I of the Act are met.  There has been no waiver in this case. 

Relevant authorities

11. [11]
    Three authorities were referred to me: R v JML [2019] QDCPR 23; KS v Veitch (No. 2) (2012) 84 NSWLR 172; and an unreported decision of the District Court of Queensland, citation at [2019] QDCPR 24.^[1] 

12. [12]
    In R v JML, supra, Fantin DCJ considered the relevant legislation at length.  In that case Her Honour considered that in order to determine whether leave to issue a subpoena to a counselling service should be granted, she should inspect the documents before determining the application for leave.  Such a procedure was within the power imposed in the court by s 14M of the Act and I adopted the same procedure in this case. 

13. [13]
    Her Honour observed that the phrase in s 14H(1)(a) “substantial probative value” is not defined in the Act.  Her Honour then said the following: 

“[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. 

[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. 

[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. 

[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. 

[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. 

[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. 

[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. 

[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. 

[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.”  (References omitted)

14. [14]
    Her Honour went on to discuss what she described as the second and third “limbs” of s 14H(1) of the Act.  In respect of the second limb, Her Honour observed that access to protected counselling communications should be prevented when relevant material is available from another source.  In respect of the third limb, Her Honour said this: 

“[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.’ 

[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. 

[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. 

[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.”  (References omitted)

15. [15]
    In KS v Veitch (No 2), supra, Basten JA, with whom Harrison and Beech-Jones JJ agreed, said this at 188 in regard to the requirement for reasons:

“[69] The requirement to give reasons is fraught with difficulties.  A judge determining such a matter is likely to have available both the document sought and a confidential statement made to the court by the protected confider or complainant under s 299D(3).^[2]  That material cannot be made available and should not be referred to in reasons in a way which discloses its contents.  Before the primary judge delivered his oral reasons, but after announcing the order he proposed to make, counsel for the complainant sought a stay pending appeal, ‘just to alert your Honour that that is the course I intend to seek’ so that ‘your reasons may [not] inadvertently disclose the contents of the evidence’.  Although his Honour expressed confidence in his ability not to disclose such material inadvertently, he had in fact already done so by referring to the fact that the documents contained certain material.

[70] Giving reasons (even in closed court, as occurred in this case) which provide any assistance to the respondent in knowing why the application has been refused runs the risk of disclosing, perhaps at a level of generality, the contents of the documents to which access is refused.  Some explanation is possible.  For example, reference may be made to the exclusion of material which would not be admissible, without disclosing its nature.  The risk of inadvertent disclosure is probably accentuated in circumstances where the primary judge intends to provide access to some at least of the documents.  The fact that the judgment was delivered in closed court is no doubt of some assistance, in that any level of public humiliation will be minimised, but the inadvertent disclosure of information not being released, to the very party who seeks it, remains an issue.  The order in fact made restricted the documents to be disclosed to a period commencing in 2002 through to 2005.  His honour disclosed that he could not find records going beyond 2005, thus potentially providing further information as to the contents of the documents.”

Submissions of the applicant

16. [16]
    The applicant in the written outline acknowledged that the submissions that could be advanced were necessarily limited. However the following submissions were made:

● 21.1 Disclosure in this case does not dissuade people from seeking counselling or infringe privacy unduly;

● 21.2 There is nothing to suggest that counselling is ongoing or current or that it would be undermined if the material is provided – the complainant can continue to have a therapeutic relationship with the counsellor;

● 21.3 The communication is not sought due to bias or discriminatory belief, but for legitimate interests to ensure the defendant’s trial is a fair one;

● 21.4 The defendant ought not be deprived of being able to cross-examine the complainant about matters relevant to her credit and reliability on crucial matters in issue in the trial;

● 21.5 Any reference to a diagnosis of any condition relevant to reliability or credit would be relevant;

● 21.6 Any reference to pre-occupation, flashbacks, dreams or reliving the incident would be relevant;

● 21.7 Any reference to other sexual contact by others or other sexual activities would be relevant;

● 21.8 Any account that is not the same as that in the complainant’s statement would be relevant.

17. [17]
    At the hearing of the application, counsel for the applicant raised the following matters:

1. (a)
   The complainant in her police interview talks generally about alcohol abuse, and being “tipsy” when she says she was woken up by the alleged incident.  Information contained in the subpoenaed documents concerning her alcohol use, or alcohol abuse, would be relevant to substantive matters and would be of probative value.  It would also be relevant to her tendency to go behind the backs of adults, which would be relevant to her credibility and reliability generally.

2. (b)
   Issues concerning the breakup of a recent relationship, which may provide evidence about the issues surrounding that, and possible potential motive concerning that.  Questioning about what was going on in her personal life at the time of the alleged incident might provide some incentive or motive to make a false allegation, or to embellish upon it. 

3. (c)
   The complainant in the police interview referred to a Snapchat message, and other Snapchat records have been lost, which may have been relevant to the cross-examination of the complainant. 

4. (d)
   There are existing inconsistencies in the complainant’s account she gave to police in the interview, compared with what she said in her formal written police statement. 

5. (e)
   The complainant made comments to a friend, mentioned talking about the guidance counsellor, that she was “really stressed, it was haunting me for a while, sort of just like hearing things in class”. 

18. [18]
    In respect of the second limb of s 14H(1), counsel for the applicant submitted that there was no medical evidence whatsoever, and that needed to be looked at in the context that there was only one Snapchat page available, and the rest of the complainant’s Snapchat communications had been lost.

19. [19]
    In respect of the third limb, counsel for the applicant submitted that where there was something in the records of substantial probative value, that should take a level of precedence over the issues to be considered under the third limb, in particular having regard to the right to a fair trial and the right of a defendant to make a full defence and cross-examine witnesses on all relevant matters.

Submissions of the respondent

20. [20]
    The respondent submitted the following in its written outline at [33]:

“The respondent submits that the material sought is protected counselling communication and the court cannot be satisfied that leave should be granted pursuant to s 14H, firstly because there is no identified matter or issue which will have substantial probative value.  Even if it could be determined there was substantial probative value derived within the communications the applicant has not addressed that it is not available elsewhere by other documents or evidence, nor that 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.”

21. [21]
    In the course of oral submissions counsel for the respondent submitted that before leave could be granted, the issues raised by the applicant “need to be more substantive than just saying these areas may be presented in the material if we have an opportunity to see them.  Essentially, the analogy I have used is that you need to keep^[3] some specific point, or piece of evidence, as a matter of fact, that exists that they can point to, to say that if they look at their counsel [sic], the protected communications, they may find something that will assist them there, with their cross-examination.  It can’t be a speculative case where they say ‘we need to have a look to see if that material exists’.  And I say that where – for example, the basis upon which one issue might be raised, that my learned friend has submitted to, is in relation – in terms of the relationships that the complainant had, or anything in terms of the relationship issues, and I point to page 14 of the 93A statement… now, general relationship issues, if it’s not directly related to the defendant in this case, isn’t something that’s going to be relevant to the case.” 

22. [22]
    Further, counsel for the respondent submitted that “there needs to be something more specific.  There needs to be a nexus between the application being made and the documentation that they intend to have a look at.”^[4] 

Statement of the counselled person

23. [23]
    I have considered a statement of the counselled person, T, in accordance with s 14H(3) of the Act.  The statement was in the form of an affidavit sworn on 16 September 2019, which I have read and taken into account.  I order that the affidavit be placed in a sealed envelope and marked “not to be opened unless by order of a court”. 

Conclusion

24. [24]
    While one appreciates the public purpose of these amendments to the Act, the procedures set out by the provisions are complicated and in the future will require considerable court time to be devoted to applications of this nature.

25. [25]
    Having carefully reviewed the protected counselling communication, I have reached the conclusion that they are of little probative value, and therefore fail at the first limb, in that they do not have substantial probative value. The application is refused.