R v RWH[2020] QDCPR 47

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The defendant is charged with the following counts:

   1. (a)
      Count 1 - maintaining an unlawful sexual relationship with CH, a child under the age of 16, between 21 April 2011 and 1 July 2017;
   2. (b)
      Count 2 - indecent treatment of CH, a child under 16, under 12, under care;
   3. (c)
      Count 3 - rape of CH on a date unknown between 21 April 2012 and 22 April 2013;
   4. (d)
      Count 4 - rape of CH on a date unknown between 30 June 2016 and 1 July 2017;
   5. (e)
      Count 5 - rape of CH on a date unknown between 30 June 2016 and 1 July 2017; and
   6. (f)
      Count 6 - rape of CH on a date unknown between 30 June 2016 and 1 July 2017.
2. [2]
   The defendant through his lawyers has applied for leave pursuant to ss 14F and 14G of the Evidence Act 1977 (Qld) (“the EA”) to inspect various protected counselling communications.

Background

3. [3]
   The prosecution has tendered the depositions in the matter.^[1] The complainant CH, provided a s 93A statement dated 25 May 2018 to the police. She told the police that she was sexually abused by the defendant which started from when she was seven. She alleged that on one occasion he licked her vagina.^[2] She alleged that he put his penis in her using a cream.^[3] He took her clothes off, put stuff on her vagina and put his thing inside of her.^[4] He rubbed her clitoris and put his fingers inside her.^[5] The first time things happened was when she was about eight when he touched her vagina with his fingers.^[6] At the start of the previous year, she was watching a movie and he put his penis inside her vagina.^[7] He would put her on his lap when he was looking at the computer and put his fingers in her vagina a few times from when she was like seven to nine.^[8]
4. [4]
   BN, a school chaplain, gives evidence that on 18 May 2018, CH was at the office and was upset. He had a conversation with her and she alleged that her uncle had taken her virginity away from her. JH, the complainant’s mother, in her statement, says that in May 2018, she spoke to the complainant who complained that the defendant touched her.

Submissions

Defence submissions^[9]

5. [5]
   The defendant in written submissions seeks leave to access documents (including protected counselling communications) subpoenaed from the Sarina State High School and Sarina Primary School, the Mackay Base Hospital and Sarina Hospital and the Sarina Family Practice.
6. [6]
   The defendant instructs that none of the alleged incidents took place.
7. [7]
   In the section 93A statement the defendant refers to the fact the complainant said she did not have a good memory. She also said she would self-harm. She started this when she was 13 and the school chaplain and the guidance officer tried to help her.
8. [8]
   It is submitted the protected documents have a substantial probative value because this is a “word on word” case; there are no witnesses to corroborate the complainant’s account; the school behaviour records reveal the complainant was always on her Ipad talking with friends and about self-harm - this is relevant because she started self- harming when she realised what was happening; the medical/hospital records may reveal she has a psychological condition and is taking medication; the details of the medication are relevant to her memory; the defence seeks access to any previous inconsistent statements to the medical advisers and the defence seeks access to records where she has not disclosed the alleged offending.
9. [9]
   As to BN, it is submitted these documents are not privileged as he is not a counsellor as defined in the EA as he is a religious representative.
10. [10]
    It is submitted there are no other documents or evidence available to the defence concerning the matters to which the subpoenaed documents relate.
11. [11]
    It is submitted the public interest in admitting the communication into evidence substantially outweighs the public interest in preserving confidentiality and in protecting the complainant from harm. It is submitted there is no harm if the truth is ascertained in circumstances where she will give evidence from a remote room and the evidence will be pre-recorded.
12. [12]
    In oral submissions the defence submitted that:

    1. (a)
       This court is not bound by R v JML.^[10]
    2. (b)
       The reasons in JML at [65]-[73] should not be accepted.
    3. (c)
       The crown submissions at [8] were inaccurate and at [9] undermine the presumption of innocence.
    4. (d)
       There is no corroboration in this matter.
    5. (e)
       The records concerning counselling with the school Chaplain should be disclosed as he is a religious representative as defined.
    6. (f)
       There is no other way to establish that which is contained in the material sought.

7. (g)
   As to the counselled person’s submissions at [46]-[51] it is a matter of a value judgment to be made by the court.
8. (h)
   It is submitted the credibility and reliability of the complainant is central at this trial.

Crown submissions^[11]

13. [13]
    In reliance on the case of R v JML,^[12] the crown submits that the submission by the defence that the complainant did not complain to various medical practitioners is misconceived.
14. [14]
    The submission made that there would be no harm to the complainant is rejected. It is submitted it would be traumatic for the complainant to give evidence about these alleged sexual offences. This would be heightened if forced to discuss details of counselling.
15. [15]
    In reliance on the explanatory notes, the crown points out that:

    1. (a)
       Sexual assault counselling services play an integral role in assisting people to recover from sexual assault.
    2. (b)
       The statutory protections encourage victims to seek therapy and to report the crime to the police.
    3. (c)
       The provisions are based on recommendation 130 in the Domestic and Family Violence Task Force Report.
16. [16]
    In oral submissions the crown submitted that the school counsellor is a counsellor as defined in the EA.

Counselled person’s submissions^[13]

17. [17]
    The counselled person notes that subpoenas have been issued by the defendant to Medicare, the Mackay Health Service, the Sarina Medical Practice and Education Queensland. The schedules to the subpoenas did not specifically exclude protected counselling communications. Education Queensland has redacted its material, but the other entities have not.
18. [18]
    The counselled person opposes the application for leave to adduce evidence of any of the material which contains protected counselling communications and the application to disclose, inspect or copy those protected counselling communications.
19. [19]
    The counselled person at para 30, accepts that records related only to educational outcomes or the treatment of physical injuries would not be privileged. However, records relating to disclosures made to a guidance officer, social worker, doctor, nurse, psychologist or psychiatrist may be privileged.
20. [20]
    The counselled person has prepared an annexure^[14] which broadly references the nature of the material and identifies those documents the counselled person considers may be privileged. It is submitted that if there are significant inconsistences in relation to the complainant’s version of offending, this may be substantially probative, but it is submitted that none of the material discloses such inconsistencies. It is disputed the documents regarding self-harm would have substantial probative value. It is submitted that the fact that the complainant may have psychological or psychiatric problems and may be taking medication is not on its own sufficient to amount to substantial probative value. It is submitted that the complainant’s evidence is not vague and further, there is a public interest in not disclosing the material.

21. [21]
    It is submitted that a substantial proportion of the subpoenaed material falls outside the scope of the statutory privilege and it is submitted the application insofar as it relates to the sexual assault privileged documents should be refused.
22. [22]
    In oral submissions it was submitted that:

    1. (a)
       The Chaplain was a counsellor for the purposes of the EA.
    2. (b)
       The documents sought by the defendant did not achieve substantial probative value.
    3. (c)
       It is a question for the court to examine the material to make a determination.
23. [23]
    A statement of harm was tendered^[15] and submissions were made in closed court which I do not propose to repeat.

Discussion

24. [24]
    In reaching my decision, I have had regard to the legislation, the evidence, the submissions made by Counsel and to the relevant documents.
25. [25]
    Section 14A of the EA provides:

“14AMeaning of protected counselling communication

1. (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.

…

3. (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. (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. (b)
   evidence to the extent it discloses a protected counselling communication.”

26. [26]
    Section 14D of the EA provides:

“14D Sexual assault counselling privilege

A person can not do any of the following things in connection with the proceeding—

1. (a)
   compel, whether by subpoena or otherwise, another person to produce a protected counselling communication to a court;
2. (b)
   produce to a court, adduce evidence of or otherwise use, a protected counselling communication;
3. (c)
   otherwise disclose, inspect or copy a protected counselling communication.”

27. [27]
    Section 14F of the EA provides:

“14F Sexual 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. (a)
   compel, whether by subpoena or otherwise, another person to produce a protected counselling communication to a court;
2. (b)
   produce to a court, adduce evidence of or otherwise use, a protected counselling communication;
3. (c)
   otherwise disclose, inspect or copy a protected counselling communication.”

28. [28]
    Section 14G of the EA provides:

“14G Application for leave

1. (1)
   A party to the proceeding may apply for leave of the court under this subdivision.
2. (2)
   As soon as reasonably practicable after the application is made, the applicant must give the following persons a notice complying with subsection (3)—

   1. each other party to the proceeding;
   2. if the counsellor to whom the protected counselling communication relates is not a party to the proceeding—the counsellor.
3. (3)
   For subsection (2), the notice is a written notice stating—

   1. an application for leave under this subdivision has been made in relation to a protected counselling communication; and
   2. a description of the nature and particulars of the protected counselling communication (other than particulars disclosing the content of the communication); and
   3. if the counsellor or counselled person to whom the communication relates is not a party to the proceeding—that the counsellor or counselled person may appear in the proceeding under section 14L.
4. (4)
   If the counselled person to whom the protected counselling communication relates is not a party to the proceeding, the prosecutor must, as soon as practicable after a notice is given under subsection (2), give the counselled person a copy of the notice.

5. (5)
   The court can not decide the application until at least 14 days after subsection (2) is complied with.
6. (6)
   However, the court may waive the requirement to comply with subsection (2) if, in relation to the proceeding—

   1. notice has been given of a previous application for leave under this subdivision relating to the same protected counselling communication; or
   2. the counselled person to whom the protected counselling communication relates has consented to the waiver of the requirement; or
   3. the court is satisfied—

   1. exceptional circumstances exist that require the waiver of the requirement; and
   2. it is in the public interest to waive the requirement.
7. (7)
   For subsection (6)(b), the consent must be given—

   1. in writing; or
   2. if the counselled person can not give written consent because of a disability—orally.”

29. [29]
    Section 14H of the EA provides:

“14H Deciding 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. 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. preserving the confidentiality of the communication; and
   2. protecting the counselled person from harm.
2. (2)
   In deciding the matter mentioned in subsection (1)(c), 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. (h)
   any other matter the court considers relevant.

3. (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.
4. (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. anyone who is not an essential person; and
   2. an essential person, if—

   1. the counselled person asks that the essential person be excluded; and
   2. the court considers excluding the essential person would serve a proper interest of the counselled person.
5. (5)
   The court must not disclose, or make available to a party to the proceeding, a statement made to the court under subsection (3).
6. (6)
   The court must state its reasons for granting or refusing to grant the application.
7. (7)
   If the proceeding is a trial by jury, the court must hear and decide the application in the absence of the jury.
8. (8)
   In this section—

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

30. [30]
    These provisions were discussed in R v JML^[16] which has been followed in R v HJE & HRB.^[17]
31. [31]
    In JML Judge Fantin referred to the Explanatory Notes to the Victims of Crime Assistance and Other Legislation Amendment Bill 2016 and noted the policy objectives for introducing a sexual assault counselling privilege. At [37] her Honour noted these as:

32. [32]
    As her Honour noted, the scheme seeks to balance the competing public interests of ensuring the fair trial of an accused while respecting the privacy of counselling communications.
33. [33]
    None of these aspects of JML were the subject of challenge by the defence.
34. [34]
    The Queensland provisions introduced in 2016 are generally based on the New South Wales provisions.^[18]
35. [35]
    Section 14H(1)(a) of the EA provides that the first matter to be considered then is whether the protected counselling communication will have substantial probative value. This is determined by an analysis of the facts in issue in the proceedings. For example, as Judge Fantin noted at [53] in JML, a defendant may seek access to documents in order to formulate lines of cross-examination, for example relating to potential inconsistent statements relating to the circumstances of the offence, or by using material in the records to suggest the complainant is unreliable.^[19]
36. [36]
    In JML, it was said the word “substantial” connotes something important, ample or considerable.^[20] In the Australian Concise Oxford Dictionary it is said to mean “of real importance or value.”
37. [37]
    In KS v Veitch (No 2),^[21] the New South Wales provision was constitutionally challenged. The challenge was dismissed. At [32] Basten JA noted that the requirement of “substantial probative value” will constitute a significant reduction in the material made available to the accused under general law.^[22]
38. [38]
    Once the defendant establishes there is a substantial probative value in obtaining and inspecting the records, the second limb under s 14H(1)(b) of the EA is whether there are other documents or evidence available to which the communication relates.
39. [39]
    The final matter is the weighing of competing public interests (s 14H(1)(c) of the EA). That is, that the public interest in admitting the communication into evidence “substantially outweighs” the public interest in preserving the confidentiality of the communication and in protecting the counselled person from harm. This is a balancing exercise and the matters set out in s 14H(2) of the EA are matters to which the court must have regard.

40. [40]
    In KS v Leitch,^[23] Basten JA noted the purpose of the maintaining of the confidences is to encourage victims of sexual assault to seek professional assistance to deal with the resultant trauma.
41. [41]
    In Annexure A to the judgment, I have summarised my rulings with respect to each of the documents objected to by the counselled person. I now give more detail about those rulings.
42. [42]
    I have considered the documents objected to contained in the annexures prepared by the counselled person^[24] and am satisfied that they constitute “protected counselling communications” as defined in s 14A of the EA.
43. [43]
    I considered the school chaplain to be a counsellor and was not at the relevant time acting as a religious representative. It is my view that the correct reading of the definition of section 14B is that the exception applies where the person holds themselves out as a representative of the religion or group.^[25] Here the chaplain was acting as a counsellor not as a representative of a religion at the time he spoke to the complainant.
44. [44]
    The principal facts in issue in this case would appear to be whether the complainant was sexually assaulted at all. Clearly enough the credibility and the reliability of the complainant would be crucial in this case.
45. [45]
    Turning then to the relevant records, having considered these submissions and the entirety of the records, it is my view that the bulk of the records do not achieve a substantial probative value in this matter. In my view this is not a case where the mental health condition is such as would achieve such a value.
46. [46]
    Also even if it be thought they did, it is my opinion that bearing in mind most relate to treatment and/or counselling of the complainant, the public interest in preserving the confidentiality of the communication and in protecting the counselled person from harm outweighs the public interest in admitting the communications into evidence.
47. [47]
    In those circumstances with respect to those documents (aside from the ones discussed in the annexure) I am not satisfied that the public interest in admitting the communications into evidence substantially outweighs the public interest in preserving the confidentiality of the communications and protecting the complainant from harm. In this regard I have given weight to the statement of harm.^[26] I note that “harm” is widely defined to include physical, emotional or psychological harm, financial loss, stress or shock and damage to reputation.^[27] This would result from detailed cross-examination about a person’s fragile mental state as a result of which they sought treatment by way of counselling.^[28]
48. [48]
    I accept the submissions that counselling services play an integral role is assisting persons to recover from alleged sexual assault and the statutory protections encourage victims to seek therapy and to report alleged crimes to the police.^[29] There are also privacy considerations to be considered.^[30]

49. [49]
    But of course the counselling is not limited to counselling obtained after the alleged crime - it includes counselling before the alleged sexual assault.^[31] Also it does not have to be counselling about the alleged sexual assault.^[32]
50. [50]
    I consider that the public interest in preserving confidentiality outweighs the public interest in admitting the communication into evidence. I consider that it is important to preserve the privacy of counselling received by the complainant. In this regard I refer to the statement of harm.
51. [51]
    I therefore refuse the defendant’s application with respect to all documents aside from those mentioned in the annexure.
52. [52]
    I add that I did not need to deal with the defendant’s submission as to the relevance of the fact that no complaint was made to a number of counsellors as most (if not all) of the records which evidence dates have been disclosed now. I do note in Rohan v R,^[33] Hulme JA considered the absence of complaint would not have much probative value. But that statement must be considered in the light of section 294 of the Criminal Procedure Act 1896 (NSW) requires a jury to be given a specific direction that absence of complaint does not mean the account is false and there may be good reason why complaint is not made. There is no such provision in Queensland.^[34]
53. [53]
    It is my view that some of the documents do achieve a substantial probative value, the evidence cannot be obtained from any other source and the public interest in admitting the documents substantially outweighs the public interest in preserving the confidentiality of the communication and in protecting the complainant from harm.
54. [54]
    They are the following documents and the reason appears next to them.
55. [55]
    In essence the reason for disclosure is the complainant’s version of events appears which achieved substantial probative value which outweighs the public interest in preserving confidentiality.^[35] With appropriate redactions the legislation’s purpose is achieved.
56. [56]
    I did not consider the defence could otherwise obtain such documents.

Conclusion

57. [57]
    I order the parties to produce an order reflecting the reasons given in this judgment. The order should include provision for the sealing of any non-disclosed material and the transcript of the closed court proceedings.

Annexure A- Specific Rulings

Mackay Base Hospital material

Sarina Family Practice

Sarina State High School

Sarina State School