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- Unreported Judgment
DISTRICT COURT OF QUEENSLAND
R v Kay  QDCPR 10
BRIAN JAMES KAY
5 February 2021
Cash QC DCJ
CRIMINAL LAW – EVIDENCE – PROTECTED COUNSELLING COMMUNICATION – where leave sought to issue subpoena for the production of protected counselling communication – whether the public interest in admitting the communication outweighs the need to respect the privacy of the counselled person – whether the protected counselling communication will have a substantial probative value.
Evidence Act 1977 (Qld), s 14A, ss 14H(b) – 9c), ss 14M(2).
Jago v the District Court of New South Wales  168 CLR 23.
R v JML  QDCPR 23.
NAR v PPC (No 1)  NSWCCA 25.
Rohan v R  NSWCCA 89.
KS v Veitch (No 2)  84 NSWLR 172.
R v CDJ  QDCPR 115.
N Turner for the applicant.
W Slack for the respondent.
R Malcom for the counselled person.
Chelsea Emery for the applicant.
Office of the Director of Public Prosecutions for the respondent.
Women’s Legal Service for the counselled person.
- HIS HONOUR: This is an application by the defendant for leave to issue a subpoena to compel the production of protected counselling communication, which I will call PCC, to adduce evidence and use of PCC and to disclose, inspect and copy PCC. In order to facilitate the application, an order was made permitting the counselled person to access the material that might contain PCC. The counselled person has done so and identified material that is said to be PCC. No question of what is and what is not PCC arises in this application. That is because the defendant’s application is directed only toward material that is PCC. As such, there is no question arising as to what is PCC and consequently, no authorisation for the Court to view the material pursuant to section 14M(2) of the Evidence Act 1977 (Qld) to decide that question.
- I am invited by the applicant, though, to consider material in order to decide the issues presented by section 14H of the Evidence Act. No one suggests that there is an express power in the legislation to inspect the material for that purpose. Questions arise as to whether such a power is to be implied in the legislation. The legislation, while relatively new, has already been the subject of some consideration in the District Court, and it is fair to say, I think, that views differ.
- To assist in the interpretation, one might have regard to extrinsic material to the extent that there is extrinsic material such as the explanatory notes of the Victims of Crime Assistance and Other Legislation Amendment Bill 2016 (Qld). There is much to support the suggestion that the parliament intended to favour the protection of counselling over the interests of securing a ‘fair trial’. 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’, 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 ‘protected counselling communication’. Such is not limited to counselling arising from the alleged offence or offences. As well, 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 was justified, having regard to the ‘public interest, and encouraging people who have been sexually assaulted to seek therapy to assist in their recovery’.
- In my view, to the extent that the extrinsic material is relevant to a purposive interpretation of the legislation, it suggests 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. The legislation sets a high bar for a defendant, or any other party who wishes to access PCC. The bar is not to be hurdled by leaving it to a Court to decide, on whatever limited information the parties choose to place before it. 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. In NAR v PPC (No 1)  NSWCCA 25; 224 A Crim R 535, Adams J at paragraph 4 wrote of the equivalent provision to section 14H:
Speaking generally, it is obvious that section 299D issues cannot be considered without examining the documents for 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.
However, as was later observed by Justice Hume in Rohan v R  NSWCCA 89, at 62:
Adams Js observation did not commend itself to the other members of the Court. Hoeben CJ at common law noting that ‘the issue does arise for this matter’.
- In KS v Veitch (No 2)  84 NSWLR 172, the New South Wales Court of Criminal Appeal were concerned with an appeal against the refusal of the 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 criterion in section 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.
- In my view, those 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 such material as they can, disclose so much of their case as they wish, and in this way, identify what material will, as that phrase is used in section 14H, be found in any PCC, and why that material should be accessed consistently with requirements of section 14H.
- It would generally be insufficient for a defendant to simply say they are not guilty of the offence or offences, that the credit of the counselled person will be a critical issue at the trial, and then leave it to a Court to examine documents to decide whether or not to grant leave. In this regard, I am greatly assisted by and agree with the observations of Judge Long in R v CDJ  QDCPR 115. It is for these reasons in the present application that I consider it is not appropriate to peruse the documents in order to decide the issues presented by section 14H.
- In that context, I turn to consider the present application. The applicant is charged with one offence: one allegation of indecent treatment of a child. It is said to have occurred in either late 2002 or early 2003. The allegation is that he rubbed the complainant’s genitals for some seconds while giving her a piggyback. The complainant did not immediately report the alleged offending. It was not until 2016 or 2017 that she told other persons, and not until 2018 that she told the police.
- The applicant submits, correctly, that the credibility and reliability of the complainant will be the central issue in the trial. The applicant in his outline submits that, ‘It is to be expected that the counselled person discussed the allegation with her counsellor’, and, ‘It is expected that the counselled person discussed with her counsellor whether she made any preliminary complaints, and if so, to who’. The argument then proceeds to assume that what was said has relevance, perhaps because it was inconsistent and is therefore of substantial probative value. In my view this is flawed logic.
- There is nothing in the material to which I have been taken to support such a conclusion. It may be in an appropriate case that a defendant would access material that is not PCC, and could demonstrate by inference from that material the existence or likely existence of material that would have substantial probative value. This is not such a case. In my view the applicant has not demonstrated the PCC sought will have substantial probative value. It is unnecessary, therefore, to consider section 14H (1)(b) or (c). The application is dismissed.
As to the concept of a fair trial, see Jago v the District Court of New South Wales  168 CLR 23, at  –  in the judgment of Justice Deane, where it is clear that a right to a fair trial is a right to not be tried unfairly, and a fair trial need not be a perfect trial.
R v JML  QDCPR 23, .
Evidence Act 1977 (Qld), s 14A; and Victims of Crime Assistance and Other Legislation Amendment Bill 2016 (Qld), 9.
- Published Case Name:
R v Kay
- Shortened Case Name:
R v Kay
 QDCPR 10
Cash QC DCJ
05 Feb 2021