R v Klease[2020] QDCPR 98

DISTRICT COURT OF QUEENSLAND

1. [1]
   The applicant is charged with the rape of the complainant on a date unknown between 30 November 2016 and 1 March 2017.
2. [2]
   On 17 March 2020 the applicant filed an application pursuant to s 590AA of the Criminal Code for an order that, inter alia, the applicant be granted leave, pursuant to s 14G of the Evidence Act (Qld) 1977 (“the Act”), to issue subpoenas to the following parties for the production of records for the period 2015 to present relating to the complainant

   1. Department of Child Safety, Youth and Women; and
   2. CTC Youth & Family Services, Kingaroy (“CTC”).
3. [3]
   The complainant has waived any privilege that might attach to the records of the Department of Child Safety.  The complainant opposes the grant of leave to issue subpoenas for the production of records from CTC and has appeared in the proceeding pursuant to s 14L of the Act.
4. [4]
   On 9 July 2020 Judge Cash QC ordered that the counselled person and their legal representatives have leave to inspect and copy documents held by CTC in respect of the complainant including documents withheld in accordance with Part 2, Division 2A of the Act.  Pursuant to that order, the legal representatives for the counselled person inspected and copied documents held by CTC. Counsel for the complainant has examined the entirety of such documents.  Counsel for the complainant proposed providing the court with a marked-up bundle of extracted pages from that material containing any material, it was submitted, “which conceivably could be argued to be relevant and probative.”^[1]  Counsel for the complainant submitted in this regard:

“I’ve prepared a bundle of material I want to show to your Honour which is marked-up which is far – there’s far less material in that bundle than there is in the overall subpoenaed material which I have read through each page of and I am willing to assure the court that I’ve determined which ones could be relevant to a relatively large threshold. …”^[2]

5. [5]
   Neither of the other parties to the application objected to the court adopting such course and the marked-up bundle of documents was marked “MFI-A”. I have confidently relied upon the assurance of counsel for the complainant as his identification of those documents of potential relevance.
6. [6]
   It was first necessary to determine whether the documents contained “protected counselling communication(s)” as defined in s 14A of the Act.  In deciding this matter, I considered the documents marked “MFI-A” as permitted by s 14M(2) of the Act. Whilst doing so, including whilst hearing submissions from counsel for the complainant on such matter, non-essential persons, including the legal representatives for the applicant, were excluded from the courtroom as required by s 14M(3) of the Act.
7. [7]
   I note the definition of “protected counselling communication” in s 14A of the Act and the associated definitions of “counsel”, “counselled person”, “counsellor” and “sexual assault offence” in s 14B of the Act.
8. [8]
   There was no direct evidence of facts relevant to the determination of whether the records included protected counselling communications.  For example, there was no evidence, sworn or otherwise, from anyone associated with CTC that the complainant was counselled by persons employed by CTC who had undertaken training or study, or had experience, relevant to the process of counselling other persons (see definition of “counsellor” in s 14B of the Act).  I would have thought that such evidence would be easy enough to obtain but instead I was left to draw inferences as to such matters from the contents of the documents marked “MFI-A”. 
9. [9]
   The contents of those documents did permit me to draw inferences so as to be satisfied that the complainant, during the relevant period of time, was a “counselled person” in that she had been counselled (listened to and given verbal or other support, help or encouragement or advised, given therapy or treatment) by a “counsellor” (a person who has undertaken training or study, or had experience, relevant to the process of counselling other persons and who in the course of the person’s paid or voluntary employment, other than as religious representative, counselled the complainant).
10. [10]
    I was satisfied that the documents contain oral and written communications made in confidence by the complainant to a counsellor, by a counsellor to and about the complainant throughout the counselling process, and about the complainant by a parent, carer or other support person present to facilitate communication between the complainant and the counsellor or to otherwise further the counselling process.
11. [11]
    I was satisfied that the documents contain “protected counselling communication(s)” within the meaning of that term in s 14A of the Act.
12. [12]
    Upon the re-opening of the court and the re-appearance of counsel for the applicant, I indicated as such to the parties and heard further submissions as to whether leave should be granted pursuant to s 14G of the Act for the issue of the subpoena.^[3]
13. [13]
    Section 14H (1) of the Act provides as follows:

1. “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. (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.”

14. [14]
    Section 14H(2) specifies matters the court must have regard to in determining the balancing of public interest considerations pursuant to s 14H(1)(c) of the Act. 
15. [15]
    Given that I had considered the contents of “MFI-A” pursuant to s 14M of the Act in determining whether the documents contained protected counselling communications, counsel for the complainant submitted that I should also consider the contents of such documents in determining whether or not leave should be granted.  Neither of the other parties to the application submitted otherwise.  In the circumstances of this matter, it is appropriate to do so.
16. [16]
    In considering whether the protected counselling communications the subject of the application will have substantial probative value within the terms of s 14H(1)(a) of the Act, I respectfully adopt the reasoning of Judge Fantin in R v JML [2019] QDCPR 23 at [46]-[57].  In considering the factual matrix within which relevance must be ascertained, I have considered the helpful detailed summary of the evidence by counsel for the applicant.^[4]
17. [17]
    The applicant submits as follows:

“The primary fact in issue at trial will be whether the offence occurred.  The jury will be required to assess the reliability of the complainant, particularly having regard to:

1. (a)
   The time that lapsed between the alleged offence and her complaint to police;
2. (b)
   That witness’ versions of the complainant’s first disclosures are of a consensual sexual encounter between the complainant and the defendant;
3. (c)
   The extent to which aspects of the complainant’s version are contradicted by other witnesses.

A secondary fact in issue at the trial will be whether consent can be disproved and if so, whether the age of the complainant can be established to be known by the accused.

Any PCC in which the complainant discloses an account of the offending inconsistent with her witness statement, or which raises a doubt about the complainant’s memory and / or recall and / or truthfulness, will have substantial probative value.  Where the complainant’s evidence must be accepted beyond reasonable doubt to convict of rape, inconsistencies and / or evidence about memory, recall and truthfulness will substantially affect the jury’s assessment of the complaint.”^[5]

18. [18]
    I accept these submissions of the applicant as to relevance and the type of matters which could potentially be characterised as having “substantial probative value”.  I have adopted such submissions in my determination as to whether the protected counselling communications have substantial probative value.
19. [19]
    The applicant further submits that:

    1. any disclosures by the complainant about the alleged offence prior to making her first formal police witness statement would be admissible as preliminary complaint evidence;^[6]
    2. the evidence of another witness raises a question of someone other than the complainant making a report to police which might be further elucidated in the records;^[7]
    3. the records might contain preliminary complaint evidence inconsistent with the complainant’s written statement;^[8]
    4. any evidence of any diagnosis of mental illness or disorder, indicia of illogical thoughts, thought disorder and / or delusions, memory problems, medication prescribed to treat any mental illness, frequency with which counselling and / or treatment was sought, any other matter which might undermine the reliability of the complainant’s memory and any evidence of lies told by the complainant would be relevant to any assessment of the reliability of the complainant;^[9] and
    5. any disclosures by the complainant inconsistent with disclosures made to police or which indicate an absence of recall or which indicate any partial reconstruction of events including reference to the complainant’s whereabouts or planned activities on particular dates in and around the period of the alleged offence would have substantial probative value.^[10]
20. [20]
    Notwithstanding the speculative nature of such submissions, I have been alert to whether the documents contain any such matters when determining whether the protected counselling communications have substantial probative value.
21. [21]
    I have considered all of the contents of the documents marked “MFI-A”.  I am not satisfied that any of the protected counselling communications contained in the documents have substantial probative value.  In those circumstances I must refuse the application for leave and need not undertake the balancing of public interest considerations pursuant to s 14H(1)(c).  Nevertheless, had I determined that any of the protected counselling communications had substantial probative value, given the limited probative value, if any, of the contents of the documents and having regard to the matters specified in s 14H(2) of the Act, I would also have determined that the public interest in preserving the confidentiality of the communications and protecting the counselled person from harm was not substantially outweighed by the public interest in admitting such communications into evidence.  Not being satisfied of those pre-conditions for a grant of leave pursuant to s 14H of the Act, I must refuse the application for leave.
22. [22]
    The application is dismissed.  I also order that the following documents be placed in a sealed envelope and not be opened other than by order of a Judge:

    1. the documents marked “MFI-A”; and
    2. the transcript of the in-camera proceeding on 25 August 2020.