R v Thomson[2020] QDCPR 134

DISTRICT COURT OF QUEENSLAND

CRIMINAL JURISDICTION

JUDGE BURNETT

Indictment No 24 of 2020

THE QUEEN

v.

EDWARD JAMES THOMSON

ROCKHAMPTON

2.07 PM, FRIDAY, 28 FEBRUARY 2020

RULING

HIS HONOUR: This is an application for disclosure of protected counselling communications.  The application was made by the defendant in respect of material relevant to complainants A and B, who are complainants in respect of the indictment concerning this defendant.  The material sought to be disclosed concerning complainant A is contained in tender bundle 1, which I will mark A for identification in the application.  It is in two parts, bundle one which concerns material sought from the Gladstone CYMHS and bundle two which relates to material from the Gladstone Hospital.

The second bundle of material is in respect of complainant B. I will mark that material B for identification in the application.  It principally comprises material from the Department of Child Safety Queensland, the Department of Education in respect to various high schools and the Department of Human Services Victoria.  In addition, there are also materials from the Queensland Department of CSYW records, but otherwise that’s the material contained in the second tender bundle.  The counselled persons A and B oppose the application for leave to subpoena the protected counselling communications and to disclose evidence of the protective counselling communications and to disclose or inspect any copy of protected counselling communications. 

The matter of counselling communication, of course, is provided for now in division 2A of part 2 of the Evidence Act.  At its core, is the definition of protected counselling communication which includes an oral or written communication made in confidence by a counselled person or counsellor or by a counsellor to or about a counselled person to further the counselling process.  The verb “counsel” is perhaps the most significant part of an understanding of the definition, and indeed, it’s fair to say that my approach to this application is informed particularly by the observations made by Judge Cogswell in the decision of R v Fibrose.  

I have been assisted in this matter by the submissions prepared on behalf of the counselled persons and can I say, at the outset, that I have reviewed all this material and I agree with the characterisation of material made by the counsel appearing for the counselled persons, that is, that material which can be classified or characterised as protected counselling communication and that which is not, and in respect of the protected counselling communication, that which could be seen to be relevant having regard to the issues that are bound to be alive at the trial when one has regard to the schedule of facts which, in draft form, were submitted by the Crown.  

As was submitted, any subpoenaed material that does not contain PCC is discoverable by the parties and an order to inspect and copy such documents can be made in the usual course.  It’s in relation to subpoenaed documents that may contain PCC that a determination must be made by the Court as to whether their contents do, in fact, contain PCC and then the Act requires the Court to consider a document or evidence to decide whether it is indeed a PCC and that has occurred in this instance.  For the purpose of delivering these reasons, I do not think it is necessary to exclude any person from the Court because there will be no disclosure about the nature of the material.  My observations will be very broad.  

In terms of broad principles, as I have said, division 2A of part 2 of the Evidence Act governs the process.  Various definitions are provided.  I am not going to expand upon them, but the material definitions include, for the purposes of the application, counsellor and counsel, and it requires at its heart the characterisation of a document as a protected counselling communication.  Where a communication exists, and that is a document or communication which discloses a communication made in conference by a counselled person, that being a person who is or has been counselled by the counsellor to the counsellor or contains a communication made in confidence about a counselled person to further a counselling process, it would ordinarily be a protected counselling communication.  

The use of the word “counselling” within the definition of counsellor should be read in the context of the definition of the verb “counsel” as provided in section 14B, and so it follows that where, on the face of a document, a counsellor has undertaken training or study or has experience at least in relation to those matters, then it would find the author to be a counsellor.  That is, of course, important particularly in this instance, in relation to quite a body of the material relating to the Victorian Department of Human Services and the Queensland Department of Children’s Services. 

So far as the material concerning the complainant B is concerned, I have reviewed the material from the Department of Child Safety, the Department of Education in relation to the Calliope State School, the Department of Education in respect of the Yeppoon State High School, the Department of Education notes, the Department of Education in respect of the Glenmore and Yeppoon State Schools and the Victorian Department of Human Services and conclude that none of the documentation there constitutes a protected counselling communication.  Those documents largely reflect independent inquiries undertaken by those agencies, particularly in relation to circumstances relevant to the households in which the complainant was a resident and perhaps the complainant’s performance at various schools.

They are not, in my view, protected counselling communications representing communications of any form which concern the complainant as communication made by her in confidence to a counsellor, being a person who is providing her with counselling services or engaged in counselling activities to further the counselling process.  It follows that orders can be made for their disclosure without further involvement by a Court. 

So far as complainant A is concerned, I have reviewed the material from the Gladstone CYMHS and the Gladstone Hospital.  The material includes some materials which are by definition protected counselling communications and others which are not. 

 Broadly, and I will correct the submissions made by counsel in one respect, the submissions can be accepted and the characterisation of the documents can be accepted.  However, in the schedule which was prepared for the application by representatives for the counselled persons, the pagination is incorrect.  On page 7 of the written outline under the heading Subpoena Gladstone Hospital, it identifies the first of pages 112 to 240. The material actually does not distinguish the material in the two bundles.  It commences at page 1, which represents bundle 1, through to page 191.  Bundle 2 starts at, effectively, 192 and goes forward.  It follows that the first protected counselling communication is to be found at page 304 of the bundle and the next protected counselling communication which will be the subject of an order, is to be found at page 386 through to page 394 of the bundle.

Otherwise, I have reviewed each of those documents and have concluded, consistent with the submissions made for the counselled person, that those which have been identified as not being properly characterised as protected counselling communication in accordance with the Evidence Act are appropriately characterised.  Those which have been characterised as protected counselling communication have been appropriately characterised, but in respect of those documents, only the protected counselling communication found at pages 1 to 4, 19 and 20, page 25, page 304 in the bundle and page 386 to 394 in the bundle are arguably confidential communications which might be considered appropriate for disclosure.

As to whether they ought to be disclosed, of course, comes down to a consideration of the requirements of s 14H of the Evidence Act.  Following various authorities in New South Wales and I’m mindful, in particular, of the decision of the New South Wales Court of Appeal in KS v Veitch (No. 2). There, Baston J addressed the matters when considering a similar legislative scheme.  There were three conjunctive requirements;  first, that the PCC itself by itself or having regard to other evidence has substantive probative value.  The second is that other documents or evidence concerning the matters which the communications relate are not available, and the third is that public interest in admitting the communications outweigh the public interest in first observing the confidentiality of the communications and, secondly, in protecting the counselled person from harm.  The first, of course, calls for the question of whether or not the PCC will have substantive probative value.

In KS v Veitch (No. 2), the Court of Appeal in New South Wales observed, leaving the question of evidence to one side, it is the use which might be made of the documents by the parties seeking access which must be the focus of the Court’s determination.  Under the general requirements in relation to a subpoena or a notice to produce, it is not necessary that the moving party demonstrate that the materials sought will be admissible in evidence.  The accepted test of a legitimate forensic purpose is undoubtedly broader than that.  An accused may well seek access to documents in order to formulate lines of cross-examination either by suggesting that the applicant has made prior inconsistent statements to a counsellor in relation to the circumstances of the offence or by using material in medical records to suggest that the evidence of the applicant may be unreliable.

It may be possible to formulate a line of cross-examination without seeking to admit into evidence the document or the information contained in the document.  It follows that the first limb requiring that the court be satisfied the document or evidence have substantial probative value before allowing the accused access to it, constitutes a significant reduction in the material which might be made available to the accused under general law with respect to access to material on subpoena or through a notice to produce.  I note that Baston J’s remarks are entirely consistent with observations made by the then Chief Justice, Chief Justice de Jersey in a decision of R v Spizzirri [2001] 2 Qd R 686 where, of course, in a regime that existed prior to the introduction of these amendments to the Evidence Act, his Honour noted the importance of protecting the privacy of witness’ personal affairs.  There, his Honour said that:

“[6] as a matter of principle, consideration should not, in these criminal proceedings [then under appeal] have excluded defence access to the material where it could reasonably have been expected to disclose matters helpful to the legitimate forensic exploration of the credit of the Crown’s central witness, 

[7]  and it did not matter that the contents of  the files raising those things may not have been, in form, themselves admissible as evidence.  It would have been sufficient that they armed the defence with information it might fairly have pursued with the complainant towards that potentially significant forensic goal, the erosion of his credit.”

As his Honour continued at paragraph 14:

“[14]  … it would be oddly regressive if, in the contemporary criminal court, a trial judge were to deny the defence access to material which may well help erode or destroy an important Crown witness’s credit, or to say, (although it was not said here), ‘you have had enough already.  I will not let you equip yourself to take any further step along this route’.”

When one has regard in particular to those principles, it seems prima facie that material that has been identified and which I do propose to be disclosed is relevant to the issues of credit in respect of the complainant and, at least prima facie, ought to be disclosed.  The second matter, of course, then is whether other documents or evidence concerning the matters to which the communications relate otherwise not being available.  There is nothing to suggest that any of those matters are otherwise available, and that’s unsurprising, having regard to the nature of the material and, accordingly, the second matter is satisfied.  

The third matter, of course, is that its admission substantially outweighs the public interest in preserving the confidentiality of the communication and protecting the counselled person from harm.  That brings into consideration the matters detailed in subsection (14)(2)(h)(ii), which include; a need to encourage victims of sexual assault offences to seek counselling; the impact of the victims of counselling recognising the effectiveness of counselling is likely to be dependent upon maintaining the confidentiality of the counselling relationship; the public interest in ensuring the victims of sexual assault offences receive effective counselling; the disclosure of protected counselling communication is likely to damage the relationship between the counsellor and the counselled person; whether the disclosure is sought on the basis of a discriminatory belief or bias that the disclosure of such communication is likely to infringe a reasonable expectation of privacy; and the extent to which that communication is necessary to enable the accused to make a full defence.  Again, turning to the observations made by Baston J, his Honour said at 34:

“[34]  The third requirement imposes an additional and significant constraint.  It requires that the two competing public interests be considered with access being conditional upon the public interest and protection of confidences being substantially outweighed by the interest in admitting the material into evidence.  Significantly, the form of public interest has two limbs.  The first addresses a public interest in maintaining protected confidences generally, while the second relates to possible harm to the particular confider.  The purpose of protecting such confidences generally is to encourage victims of sexual assault to seek professional assistance to deal with the resultant trauma.  That public purpose will be undermined if confidentiality is too readily held to be overridden  by other public interests in circumstances where the court may be satisfied that the particular confider will not suffer significant harm.  On the other hand, an assessment that the information has substantive probative value in the usual case no doubt by casting doubt on the veracity or reliability of the complainant will militate in favour of disclosure where it should give rise to a doubt as to the guilt of the accused.”

So far as the PCC material is concerned, that is material which is accepted by the protected person’s counsel to be, prima facie, open for consideration as generally relevant to issues in proceedings; they do, in my view, have relevant probative value with the prospect of it being used in respect of the matter of credit of the complainant.  It follows then, having regard to the matters that are required, that those documents ought be disclosed.  However, none of the other material which is identified as protected counselling communication in respect of the complainant A in the table is to be disclosed except, as I say, for those particular documents, pages 1 to 4, pages 19 and 20, page 25, pages 304 and 386 to 394 of complainant A’s bundle included in A for identification.  Otherwise, the other materials which have not been characterised as protected counselling communications are available to be subpoenaed by  the defendants.  

I will have counsel submit a draft order for consideration.