R v TRKJ[2020] QDCPR 124

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The defendant/applicant is charged on indictment with three alleged offences of indecent treatment of a child under 16, under his care. The complainant is, practically speaking, the applicant’s step daughter. The offending alleged against the applicant is said to have occurred between January 2016 and December 2018. The complainant has, separately, been the victim of sexual offences by another person. This man, Bruce Walker, maintained an unlawful sexual relationship with the complaint between June 2014 and January 2017. Material already disclosed in the prosecution brief indicates that in early 2019 the complainant was counselled by a psychiatrist, who I will refer to only as Dr J, and a community organisation, Zig Zag Young Women’s Resource Centre. The complainant also told police she was being counselled by another person.
2. [2]
   The present application is concerned with two things. First, the applicant seeks leave, pursuant to section 4 of the Criminal Law (Sexual Offences) Act 1978 (Qld), to cross-examine the complainant about the sexual offences committed by Walker.  Secondly, he applies for leave to subpoena, inspect and use ‘protected counselling communication’ (‘PCC’) pursuant to Part 2, Division 2A of the Evidence Act 1977 (Qld).
3. [3]
   For the reasons that follow, the application for leave to cross-examine the complainant the sexual offences committed by Walker will be allowed in part, but the application for leave to subpoena, inspect and use PCC will be dismissed.

Necessary background

4. [4]
   Some detail of the allegations against the applicant and the offending of Walker is necessary to give context to and understanding of the present applications.

The allegations against the applicant^[1]

5. [5]
   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.
6. [6]
   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.
7. [7]
   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. On the occasion of the third alleged offence, the complainant said she could fix a precise time for the incident as she checked the time on her phone. 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.
8. [8]
   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.

Details of relevant offences committed by Walker

9. [9]
   The complainant is a similar age to, and was friends with, Walker’s daughter. In this context the complainant regularly spent time, including overnight stays, at Walker’s home. After another young girl complained that Walker had behaved inappropriately toward her a police investigation commenced. The complainant was interviewed by police in late May 2017. She denied that there had been any inappropriate or sexual contact with Walker. As the investigation proceeded police took computers, mobile telephones and other electronic equipment from Walker. They found video recordings of Walker abusing the complainant. The complainant was interviewed again and disclosed serious sexual offending committed by Walker. Walker was interviewed as well and made some admissions, while attempting to minimise his own conduct.
10. [10]
    Walker pled guilty to, and was convicted of, maintaining an unlawful sexual relationship with the complainant over two years and seven months between June 2014 and January 2017. There were many separate sexual acts that constituted this offence. The conduct commenced with Walker having the complainant undress and dance while he recorded a video. It progressed to Walker touching the complainant’s genitals and using his fingers to spread her labia and record images of her inner genitalia. Acts of this kind happened on many occasions. Ultimately the conduct extended to Walker performing oral sex on the complainant, inserting fingers and objects into her vagina and anus and inserting his penis into her vagina.
11. [11]
    According to the complainant’s statements to police concerning the applicant, the first two offences alleged against him had already occurred when the complainant was interviewed about Walker’s offending. She said nothing to the police about these allegations at the time.

Leave to cross-examine – statutory framework

12. [12]
    It is apparent from the material that the applicant wants to cross-examine the complainant about aspects of the offences committed by Walker and the investigation of those offences. In particular, the applicant would seek to establish that:

• when the complainant spoke to the police about offences committed by Walker she first denied any offending by him;
• she also said nothing about alleged offending by the applicant, even though on her account two offences had by then already occurred; and
• some of Walker’s offending (that he used his phone to record images of the complainant’s genitals) is very similar to that alleged against the applicant.

13. [13]
    Any cross-examination seeking to establish these matters would necessarily reveal some of the sexual offending committed by Walker upon the complainant. That is, the cross-examination would, if permitted, reveal the sexual activities of the complainant with another person. Questions of this kind are, without leave of the court, prohibited.
14. [14]
    So called ‘rape shield’ laws exist in every Australian jurisdiction. The Australian Law Reform Commission considered these laws have three principal aims:

• to prohibit the admission of evidence of a complainant’s sexual reputation;
• to prevent the use of sexual history evidence to establish the complainant as a ‘type’ of person who is more likely to consent to sexual activity; and
• to exclude the use of a complainant’s sexual history as an indicator of the complainant’s truthfulness.^[2]

15. [15]
    The laws have their origin in the unsatisfactory state of the law in the first half of the twentieth century whereby cross-examiners were allowed to appeal to unfounded prejudices and assumptions.^[3] In Queensland the legislative response was to enact section 4 of the Criminal Law (Sexual Offences) Act 1978 (Qld) which provides:

1. 4Special rules limiting particular evidence about sexual offences

The following rules shall apply in relation to any examination of witnesses or trial in relation to a sexual offence whether or not the examination or trial relates also to a charge of an offence other than a sexual offence against the same or any other defendant—

1. 1 The court shall not receive evidence of and shall disallow any question as to the general reputation of the complainant with respect to chastity.
2. 2 Without leave of the court—

1. cross-examination of the complainant shall not be permitted as to the sexual activities of the complainant with any person; and
2. evidence shall not be received as to the sexual activities of the complainant with any person.

1. 3 The court shall not grant leave under rule 2 unless it is satisfied that the evidence sought to be elicited or led has substantial relevance to the facts in issue or is proper matter for cross-examination as to credit.
2. 4 Evidence relating to or tending to establish the fact that the complainant has engaged in sexual activity with a person or persons must not be regarded as having substantial relevance to the facts in issue only because of any inference it may raise about general disposition.

Example of inference about general disposition—

an inference that the complainant, because of having engaged in conduct of a sexual nature, is more likely to have consented to the conduct involved in the offence

Without prejudice to the substantial relevance of other evidence, evidence of an act or event that is substantially contemporaneous with any offence with which a defendant is charged in an examination of witnesses or a trial or that is part of a sequence of acts or events that explains the circumstances in which such an offence was committed shall be regarded as having substantial relevance to the facts in issue.

1. 5. Evidence relating to or tending to establish the fact that the complainant has engaged in sexual activity with a person or persons is not proper matter for cross-examination as to credit unless, because of special circumstances, the court considers the evidence would be likely to materially impair confidence in the reliability of the complainant’s evidence.

The purpose of this rule is to ensure that a complainant is not regarded as less worthy of belief as a witness only because the complainant has engaged in sexual activity.

16. [16]
    This provision was considered by Mackenzie J (with whom McMurdo P and Williams JA agreed) in R v Tribe [2001] QCA 206. His Honour made the following observations. There is a general exclusion, unless leave is given, of evidence or cross-examination as to sexual activities of the complainant. Such evidence or cross-examination is not to be permitted unless at least one of two circumstances exist. The first being that the evidence has substantial relevance to the facts in issue. The second, that it is a ‘proper matter for cross-examination as to credit’. Proposed cross-examination would only be a ‘proper matter’ if, because of special circumstances, the court considers the evidence is likely to materially impair confidence in the reliability of the complainant’s evidence.
17. [17]
    The applicant accepts leave is necessary to cross-examine the complainant about matters concerning the offences committed by Walker. He first submits the proposed topics for cross-examination are sufficiently contemporaneous pursuant to rule 4 so as to have ‘substantial relevance to the facts in issue’. I do not accept this submission. As was explained by Mackenzie J in Tribe:^[4]

‘The last paragraph of r 4 indicates that generally the notion of relevance to facts in issue will be confined to substantially contemporaneous acts or events or part of a sequence of acts or events that explains the circumstances in which the offence was committed.’

18. [18]
    Whatever the chronological coincidence of the offences committed by Walker and those alleged against the applicant, cross-examination concerning the former does not explain the circumstances in which the latter were said to have occurred. In my view, this part of rule 4 is directed toward permitting evidence that is necessary to give context to, or explain, the circumstances of the alleged offending. The mere fact that events have occurred at about the same time is insufficient to create ‘substantial relevance to the facts in issue’.
19. [19]
    The second basis for leave is that the cross-examination goes to matters ‘likely to materially impair confidence in the reliability of the complainant’s evidence’. The requirement for there to be ‘special circumstances’ implies that ‘there must be something more than a mere tendency to impair confidence in the reliability of the complainant’s evidence.’^[5]
20. [20]
    The first matter for cross-examination concerns the failure of the complainant to disclose offending by Walker when she first spoke to the police. Taking a view generous to the applicant, this fact might impair confidence in the reliability of the complainant’s evidence. Without explanation, a failure to disclose the offending of Walker later shown to be true could be relevant to an assessment of credit. But on its own, this could not materially impair confidence in the complainant’s evidence and would not be a proper matter for cross-examination.
21. [21]
    The second matter is of more substance. According to the present allegations, at a time when the complainant disclosed to the police offending by Walker she had already been offended against by the applicant. Yet she did not mention this and, when asked by the police, offered the applicant as a person with whom she felt safe. To this may be added the third matter; that the offending by Walker is so similar to the present allegation. This may provide an explanation for how, if the applicant did not commit the offences, the complainant could describe such things to the police. Taken together these matters, in my view, are proper matters for cross-examination as to credit. They are unusual to an extent that I consider they amount to special circumstances. While it will be a matter for the jury to assess, the absence of disclosure of the present allegations has the potential to materially impair confidence in the reliability of her evidence. The prosecution suggest there may be, but points to no actual evidence of, possible explanations for the absence of disclosure. If there are explanations they will be relevant to the assessment of the evidence. But the mere possibility of explanation should not in this case deprive the applicant the potential benefit of the cross-examination.
22. [22]
    In the circumstances the applicant will have leave to cross-examine the complainant concerning two matters. First, the fact that she did not disclose the alleged offending by the applicant when she spoke to the police about the offences committed by Walker. Secondly, about the aspects of the offending by Walker that are similar to the present alleged offences. The fact that the complainant did not at first disclose Walker’s offending to the police, while a matter that might generally bear upon her credit, is not of sufficient weight, either alone or in combination with the other matters, such as to materially impair confidence in the evidence of the complainant. The applicant will not be given leave to cross-examine in relation to this topic.

‘Protected Counselling Communication’ – the statutory framework

23. [23]
    The applicant also seeks to subpoena and use material relating to the counselling provided to the complainant. It is important to note at the outset the terms of the application. By his application filed on 3 April 2020, the applicant seeks:

‘pursuant to sections 14F and 14G(1) and 14G(3)(a) of the Evidence Act 1977 (Qld) … leave to:

1. subpoena “protected counselling communication” records and information;
2. produce to a court, adduce evidence of or otherwise use a “protected counselling communication”; and
3. otherwise disclose, inspect, or copy a “protected counselling communication”.

24. [24]
    The application acknowledges, indeed it expressly states, that the material he wants to access is ‘protected counselling communication’ (‘PCC’) pursuant to the Evidence Act. As I will discuss further, this acknowledgment has an important consequence: it is not necessary for me to ‘consider a document or evidence to decide whether it is a protected counselling communication’.^[6]
25. [25]
    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.^[7] Subdivision 3 applies to the present proceedings^[8] and creates what is described in the Explanatory Notes accompanying the Bill as a ‘qualified privilege’.^[9] The privilege is expressed in the following terms:

1. 14FSexual 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.

26. [26]
    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:

1. 14HDeciding whether to grant leave

1. (1)
   The court can not 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
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. (i)
   preserving the confidentiality of the communication; and
2. (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;
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.

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.
2. (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
2. (b)
   an essential person, if—

1. (i)
   the counselled person asks that the essential person be excluded; and
2. (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).
2. (6)
   The court must state its reasons for granting or refusing to grant the application.
3. (7)
   If the proceeding is a trial by jury, the court must hear and decide the application in the absence of the jury.
4. (8)
   In this section—

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

27. [27]
    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.

28. [28]
    While both the counselled person and counsellors are to be given notice of any application,^[10] 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.^[11]
29. [29]
    There are two other provisions I would note at this point. Section 14M is the only provision that appears to contemplate the court inspecting or examining a document or evidence. The section provides:

1. 14MDeciding whether document or evidence is protected counselling communication

1. (1)
   This section applies if a question arises under this division in relation to a proceeding to which subdivision 2 or 3 applies.
2. (2)
   The court may consider a document or evidence to decide whether it is a protected counselling communication.
3. (3)
   While the court is considering the document or evidence, the court must exclude from the room in which it is sitting—

1. (a)
   anyone who is not an essential person; and
2. (b)
   an essential person, if—

1. (i)
   the counselled person to whom the document or evidence relates asks that the essential person be excluded; and
2. (ii)
   the court considers excluding the essential person would serve a proper interest of the counselled person.

1. (4)
   The court may make any other order it thinks fit to facilitate its consideration of the document or evidence.
2. (5)
   This section applies despite sections 14D and 14F.

30. [30]
    The preceding section, 14L, is titled ‘Standing of counsellor and counselled person’ and provides:

1. This section applies if—
   1. a counselled person or counsellor is not a party to a proceeding to which subdivision 2 or 3 applies; and
   2. the court is deciding whether a document or evidence relating to the counselled person or counsellor is a protected counselling communication.
2. The counselled person or counsellor may appear in the proceeding, including any appeal.

31. [31]
    This is the only provision dealing with the standing of persons who are not already parties to the proceedings. On its face it appears to limit the standing of a counselled person or counsellor to the determination of an issue pursuant to section 14M. It is curious that parliament should have intended to so limit the right of a counselled person to be heard in relation to an application such as the present. It is also inconsistent with other provisions, such as those permitting a counselled person to present a ‘statement of harm’. In this application the counselled person instructed counsel and solicitors who appeared and made submissions about all relevant matters. No party objected to the counselled person participating in this way. It was, in my view, clearly appropriate for the counselled person to participate in the hearing. Should it be necessary, I would give the counselled person leave to appear and make submissions.
32. [32]
    I draw attention to section 14L not just to deal with the issue of standing. The provision is perhaps emblematic of larger difficulties presented by the drafting of Division 2A. I have encountered considerable difficulty in attempting to take the words of the statute and come to some coherent approach that resolves the important issues raised on an application like the present while also remaining true to the legislation. The legislation is, in my view, close to unworkable.

The position of the parties as to how the application should be decided

33. [33]
    A few weeks before the hearing of this matter I made orders that required the production of the documents relating to the complainant’s counselling. The order was made with the consent or the parties and the counselled person and was expressed as being made pursuant to section 14M(4). It was made before I had the benefit of full submissions and consideration of the issues present by the application. With the benefit of hindsight, I should not have made the orders at the time that I did.
34. [34]
    In due course the documents were provided to the court. They were made available to the counselled person but no one else. The counselled person prepared a schedule to identify what she said was PCC. At the hearing of the matter the counselled person and the applicant both proceeded on the basis that the court should inspect and consider the documents not just to decide what is PCC, but also to decide the question of leave pursuant to section 14H.
35. [35]
    The counselled person, in well-reasoned and helpful submissions, proposed that the legislation should be interpreted in a manner that would result in the court inspecting and considering the documents in order to assess what in the documents is PCC and to decide the issues raised by section 14H. However, for the reasons that follow, I have come to a different conclusion. In doing so I have been greatly assisted by the recent decision of Long SC DCJ in R v CDJ [2020] QDCPR 115. As a result of the conclusion I have reached, I have not read or considered the documents produced to the court in response to the orders I made.

Is it necessary to consider the documents to decide if they contain PCC?

36. [36]
    The counselled person submits that the court is ‘required to decide whether the documents, or any of the documents,’ are PCC. This is not consistent with the terms of the application or, as the counselled person acknowledged,^[12] section 14M which is expressed in permissive, rather than mandatory, terms. Read sensibly, section 14M allows the court to decide what is PCC ‘if a question arises’. That is, the power given by section 14M(2) to consider the documents is only engaged where there is a question raised in the application. It is not triggered in circumstances such as the present where the applicant expressly seeks access only to material he describes as ‘protected counselling communication’. It may be assumed that some of the material in the documents provided to the court is not PCC. Such material is not governed by Division 2A and is not the subject of the present application. The present application does not require a determination, as an antecedent issue, of what among the documents is, or is not, PCC. As framed, the application raises only whether the applicant should have leave to access PCC, which in turn requires consideration of the matters in section 14H. In this context I turn to the next question: should the court read and consider the documents to decide the issues raised by section 14H?

Is it necessary or appropriate to consider the documents to decide the issue of leave?

37. [37]
    This application proceeded on the assumption that the court would, at some point, read and assess the documents to determine the issues raised by section 14H. In turn, this assumption rested substantially on the interpretation of, and practice that has developed around, New South Wales legislation that has a largely similar purpose to Part 2, Division 2A of the Evidence Act 1977 (Qld). In New South Wales the legislation is found in the Criminal Practice Act 1986 (NSW) (‘CP Act’). It has been interpreted in a manner that suggests the court will usually examine the documents for itself.^[13] This approach has been adopted in some cases in Queensland.^[14] An apparent basis for this adoption is that the Queensland legislation is expressed as being ‘based on the NSW model’.^[15]
38. [38]
    However, there are significant differences in the two pieces of legislation. The critical difference for present purposes is to be found between section 299B of the CP Act and section 14M of the Evidence Act 1977 (Qld). The Queensland act 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:

1. 299BDetermining 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.

39. [39]
    Despite the heading of section 299B, which unlike Queensland legislation does not form part of the act,^[16] 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 or not to grant leave to access the documents.^[17] This difference is in my view significant. The Queensland parliament chose to limit the occasions where the court might consider the documents to questions of what is, or is not, PCC. Unlike the New South Wales legislation there is no apparent source of authority for consideration of the documents for some other purpose.
40. [40]
    The counselled person proposes an interpretation of the statute based upon its apparent purpose^[18] and considering the Division as a whole. The immediate difficulty with the latter is that the legislation is not written in a way that easily permits a cohesive application of its terms. As to the former, 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.^[19] 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’.^[20] 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.^[21] 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’.^[22] In my view, to the extent that the extrinsic material is relevant to a purposive interpretation of the legislation, it suggest 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.
41. [41]
    The legislation sets a high bar for a defendant (or other party) who wishes to access PCC. The bar is not to be hurdled by leaving to a court to decide, on whatever limited information the parties choose to place before it, the serious issues raised by section 14H. It is for the applicant in each case to demonstrate why, applying section 14H, leave should be granted. That this might occur without inspection of the documents by the court has been contemplated in cases in New South Wales.
42. [42]
    In NAR v PPC1 [2013] NSWCCA 25; 224 A Crim R 535, Adams J (at [4]) wrote of the equivalent provision to section 14H:

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. (Emphasis added.)

43. [43]
    As was later observed by Hulme J in Rohan v R [2018] NSWCCA 89, [62], ‘[Adams J’s] observation did not commend itself to the other members of the Court; Hoeben CJ at CL noting that “the issue does not arise for consideration in this matter”’.
44. [44]
    In KS v Veitch (No 2) (2012) 84 NSWLR 172 the New South Wales Court of Criminal Appeal were concerned with an appeal against the refusal of a trial judge to set aside a subpoena that had been irregularly issued to secure access to PCC. The appeal was successful and the subpoena was set aside. Beech-Jones J agreed with Basten JA in this result but also made what he called ‘additional comments’ concerning the operation of the New South Wales legislation. His Honour wrote of the equivalent provision to section 14H:

… the apparently high threshold presented by the criteria in s 299D may not be as difficult to overcome as first appears if the relevant application was supported by evidence identifying the accused's defence to the relevant allegation, what the accused expects will be obtained from the material sought to be produced or inspected and what other documents or evidence are or are not available relating to those issues and the material sought. That is not to say that those matters must be deposed to before such an application will be granted but, as a practical matter, if they were an application for leave would appear to have a greater chance of success. Of course the decision to disclose those matters cannot be forced upon an accused and the decision to do so would no doubt represent a difficult forensic choice. However, all forms of litigation involve difficult forensic choices and the effect of these provisions may only be to require that they be made earlier if documents are sought in advance of the trial. (Emphasis added.)

45. [45]
    In my view these passages highlight that legislative schemes like the present can be operated without requiring the court to consider the documents for itself. In the absence of a legislative basis for such consideration, it is for an applicant to gather what material they can, disclose so much of their case as they wish, and in this way identify what material is expected to be found in any PCC and why that material should be accessed consistently with the requirements of section 14H. It would generally be insufficient for a defendant to simply say they are not guilty of the offence/s, the credit of the counselled person will be a critical issue at the trial and then leave it to a court to trawl through documents to decide whether or not to grant leave.
46. [46]
    It is for these reasons that in present application I consider it is not appropriate to peruse the documents to decide the issues presented by section 14H.

Consideration of the present application

47. [47]
    In these circumstances I proceed to consider the application on the basis of the submission made by the parties, particularly the applicant. Having identified credibility of the complainant/counselled person as being of critical importance in the trial, the applicant submits:

If the protected counselling communications reveal inconsistencies in relation to the complainant’s version of the offending, or a motive for making a false complaint against the defendant, it is submitted that would be substantially probative. Similarly, if the records revealed that the complainant had suffered from memory problems, nightmares, flashbacks, anxiety attacks or similar, this would also meet the criteria under section 14H(1)(a). Any other matter which undermines the credibility or reliability of the complainant’s account in relation to the defendant would have substantial probative value.

48. [48]
    There is no identification of why it should be thought that the PCC in this case contains any such material. No basis is suggested for why the court should assume there would be inconsistencies in the complainant’s account of the offences. Similarly there is nothing said about why the material would contain some admissible evidence of a reason for the complainant to make a false allegation against the applicant. But even if material of the kind hoped for by the applicant was to be found that does not mean it is of ‘substantial probative value’. Adopting language that has been used in relation to section 4 of the Criminal Law (Sexual Offences) Act 1978 (Qld), this phrase suggests something beyond ‘the mere tendency to impair confidence in the reliability of the complainant’s evidence’.^[23] The presence of an inconsistency, a reason to make a false complainant, or some memory, anxiety or similar issue, would not in every case be of ‘substantial probative value’.
49. [49]
    Inconsistency of accounts is common – so common it is recognised in the model direction concerning ‘preliminary complaint’ evidence found in the Supreme and District Court Criminal Directions Benchbook. The significance of some suggested reason to make a false complaint will vary widely depending on the circumstances of a case. So too will the relevance of memory or personality issues confronting a complainant. The applicant has provided no basis for thinking that, if such material exists in the PCC, it is of critical importance to the issues to be decided in the trial. In the circumstances I am unable to conclude that there is, in the PCC, material that will have substantial probative value at the trial of the applicant.
50. [50]
    It follows that it is unnecessary to consider the issues posed by section 14H(b) and (c), or the ‘statement of harm’ offered by the counselled person. The statement of harm, the material provided in response to my orders for production and the other material provided by the counselled person will be sealed and may not be opened other than by order of a court. The application to access and use PCC will be dismissed.

A final complication

51. [51]
    As mentioned in the first paragraph of this judgment, the prosecuting authorities have already disclosed to the applicant some material relating to the counselled person seeing Dr J and the Zig Zag Young Women’s Resource Centre. It seems certain that this material includes PCC. It was not explained how or why the prosecuting authorities disclosed such material. That it was disclosed is seriously concerning given the prohibitions found in sections 14D and 14F. It is to be hoped that procedures are in place to prevent such disclosure in the future, and to ensure that any access to or use of PCC by the prosecuting authorities is in accordance with the legislation.
52. [52]
    I was asked to consider making orders requiring the return of the material. In my view such orders are not necessary. The prohibitions in section 14F are clear. No party can ‘produce to a court, adduce evidence of or otherwise use’ a PCC. An order requiring the return of the material at this stage could add nothing to these prohibitions.