R v LFC[2021] QDCPR 60

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   By application filed 12 November 2020, the defendant seeks leave under Part 2, Division 2A, Subdivision 3 of the Evidence Act 1977 (Qld) (the Act) to file a subpoena that compels the production of documents subject to Sexual assault counselling privilege. Consequential orders are also sought. Those orders, if made, would permit the documents produced in response to the subpoena to be inspected, copied and adduced at trial. 
2. [2]
   The application for leave is directed to the counselling records of two complainants, who, for the purposes of this application, are a ‘counselled person’.^[1] 
3. [3]
   The counselled persons oppose the grant of leave.
4. [4]
   The crown took no active part in the application.
5. [5]
   The application is to be determined on the footing the defendant concedes that the counselling records are protected counselling communications (PCC) as defined in the Act.^[2] The key issue to be determined is whether the preconditions to the grant of leave in s 14H(1) of the Act are satisfied.
6. [6]
   To facilitate the hearing and determination of the defendant’s application, an order was made^[3] on 12 January 2021 requiring the PCC to be produced to the court.  Production occurred in accordance with the order.  The documents produced, along with written statements prepared by the counselled persons,^[4] were placed in an envelope and sealed by order of the court.

Background

7. [7]
   By way of relevant background, the defendant is charged with eight counts of indecent treatment of two complainant children. The offences are alleged to have been committed on dates unknown between 2011 and 2018.  The complainants are the defendant’s grandchildren, to whom I will refer as A and B.
8. [8]
   I was provided with a statement of facts prepared by the crown.  That document, read in conjunction with the indictment, confirms:

   1. counts 1, 6, 7 and 8 relate to complainant A, each involving an allegation that the defendant touched A on the breast; and
   2. counts 2, 3, 4 and 5 relate to complainant B, and involve allegations that the defendant:
      1. (i)
         touched B’s breast;
      2. (ii)
         looked down the front of B’s pyjamas; and
      3. (iii)
         placed his fingers on, and across, B’s genitals.
9. [9]
   The central issue at trial will be whether the complainants were indecently dealt with by the defendant.  The defence case is that the alleged acts did not occur.   Consequently, the jury will be invited to consider whether they are satisfied, beyond reasonable doubt, that the evidence of A and B is truthful, accurate and reliable.
10. [10]
    The chronology of the complainants’ disclosure, which led to the presentation of the indictment, is of importance to this application for leave.  The chronology was helpfully set out at paragraph 18 of Mr Dighton’s written submissions.  It is as follows:

11. [11]
    The defendant’s application seeks leave to inspect the counselling records for A  and B.  The application is founded on the apprehension that those records contain evidence of discussions between A, B and their counsellors about the alleged indecent dealing. It is submitted that discussions of this kind with a counsellor have substantial probative value given the timing of the counselling sessions relative to the timing of the fresh disclosures.  Mr Dighton put the matter this way at paragraph 17 of his written outline:

“The crux of this application is that the chronology of the complainants’ initial and then subsequent fresh disclosures to police, while undergoing counselling through the same period, lends substantial probative value to their discussion of the allegations with their counsellors.”

12. [12]
    I do not accept this submission is applicable to A. Her second interview with police occurred prior to the commencement of counselling. B is, however, in a different position.
13. [13]
    A statement prepared by the complainants’ mother suggests, at the time of the counselling sessions, B was opening up about the allegations. Whilst the statement is not particularly clear with whom B was discussing such matters, it suggests B was sharing more of certain things that had happened. An available inference is that information was being shared with the counsellor. That this is likely is supported by the fact that B’s counsellor encouraged her to record her memories in a diary.  It was the keeping of the diary that was the foundation for the further disclosures made by B to police in the interview of 5 May 2019.  
14. [14]
    Mr Dighton did not, as I understood his submissions, point to independent evidence of the kind discussed above suggesting A had opened up to her counsellor, or discussed allegations during the counselling process. I was not referred to any diary that had been kept by A at the recommendation of a counsellor. 
15. [15]
    The counselling records with respect to A comprise 92 pages.
16. [16]
    The counselling records with respect to B comprise 113 pages.
17. [17]
    Save for specific exceptions fairly identified by Mr Webber,^[7] the counselling records are properly characterised as PCC as defined in s 14A(1) of the Act.  As a consequence, the starting position for this proceeding, and the use that may be made of the PCC, is that prescribed by s 14F of the Act, which states:

“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 or otherwise use, a protected counselling communication; 
3. otherwise disclose, inspect or copy a protected counselling communication.” (emphasis added)

18. [18]
    The defendant seeks leave to do those things prohibited by s 14F of the Act.

The statutory framework for the grant of leave

19. [19]
    An application for leave to avoid the operation of s 14F of the Act is to be made, and determined, in accordance with ss 14G and 14H. It is subsection (1) of the latter provision that prescribes the test to be satisfied before the court can grant leave. 
20. [20]
    Section 14H(1) of the Act states:

(1)The court cannot 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. (i)
      preserving the confidentiality of the communication; and
   2. (ii)
      protecting the counselled person from harm. (emphasis added)

21. [21]
    The legislative scheme for PCC was examined in detail by Judge Fantin in R v JML [2019] QDCPR 23. The active parties to the application referred me to particular parts of her Honour’s reasons dealing with the interpretation and application of s 14H(1) of the Act.^[8]
22. [22]
    Before considering whether s 14H(1) of the Act is satisfied in the present circumstances, it is necessary to deal with a preliminary matter fairly raised by Mr Dighton and Mr Webber. They quite properly drew my attention to recent authority relevant to this question: Is the court obliged to obtain and consider the PCC in an application for leave to take one, or all, of the steps prohibited by s 14F of the Act?
23. [23]
    Mr Dighton and Mr Webber submitted the court would resolve this question in the affirmative. In support, reference was made by Mr Webber to the decisions in JML and R v DO [2019] QDCPR 49. In both cases, the court obtained and considered the PCC to determine the application for leave. It can be observed from both of these decisions that this occurred in circumstances where the question posed in paragraph [22] was not asked, and answered, by the court.
24. [24]
    I was also referred in the written submissions to two recent decisions squarely dealing with the question posed above, namely R v CDJ [2020] QDCPR 115 and R v Kay [2021] QDCPR 10. In the former decision, Judge Long SC set out a comprehensive analysis of the relevant legislative scheme with respect to PCC. Against this background, at paragraphs [76], [77] and [79] he said:

“[76]  Essentially, it is clear that the substantial premise of this application is that, upon it having been made, there is engagement of an obligation on the Court to obtain and consider the documents which are within the purview of the application, in order to consider whether and to what extent there is PCC contained in those documents and to trawl them for such information as would satisfy the requirements of s 14H.

[77]  In my view, not only is that an untenable contention as to the function of the Court from a general perspective, absent legislative warrant for it, but there is no such warrant discerned from the evident purpose or effect of these legislative provisions. And neither can such proposition be seen as consistent with the fact that this is an application for leave to engage a compulsory process of the Court, by subpoenaing the documents in issue.

…

[79]  …It is clear that only in respect of determination as to whether there is a valid claim of privilege is there, in s 14M, any recognition of the possibility that the court may consider such a document or evidence. And further it is only in that limited context that there are ancillary provisions which allow for that to occur, contrary to the primary prohibitions set out in s 14E and s 14F.”

25. [25]
    In Kay, the court agreed with CDJ.
26. [26]
    As I understood the submissions made by Mr Dighton and Mr Webber, both contend CDJ is, prima facie, authority for the proposition that the court is precluded from obtaining, and reviewing, PCC to determine an application for leave under ss 14G and 14H of the Act.  Particular attention in this regard was drawn to paragraph [79] in CDJ. It can be seen from the extract above that this paragraph of CDJ makes the point that only s 14M of the Act makes express provision for the court to obtain and review PCC. It is further pointed out that this arises in a limited context, namely where there is a disputed claim to privilege.
27. [27]
    Whilst I agree with the observation that the court is under no obligation to trawl the PCC material to determine whether, and to what extent, it contains information that satisfies the requirements of s 14H(1) of the Act,  I do not agree this is because of a statutory restriction on the court’s power, be it express or implied. 
28. [28]
    The court’s power to grant leave is sourced to s 14H of the Act. As a statutory provision granting power to a court, it ought be construed consistent with the following principle stated by Gaudron J in Knight v FP Special Assets Limited (1992) 174 CLR 178 at 205:

“It is contrary to long-established principle and wholly inappropriate that the grant of power to a court (including the conferral of jurisdiction) should be construed as subject to a limitation not appearing in the words of that grant.  Save for a qualification which I shall later mention, a grant of power should be construed in accordance with ordinary principles and, thus, the words used should be given their full meaning unless there is something to indicate to the contrary.  Powers conferred on a court are powers which must be exercised judicially and in accordance with legal principle.  This consideration leads to the qualification to which I earlier referred.  The necessity for the power to be exercised judicially tends in favour of the most liberal construction, for it denies the validity of considerations which might limit a grant of power to some different body, including, for example, that the power might be exercised arbitrarily or capriciously or to work oppression or abuse.” (emphasis added)

29. [29]
    As the above statement makes clear, it is contrary to principle to construe a legislative provision conferring power on a court subject to a limitation not appearing in the grant of power, unless there is something to indicate to the contrary. That ‘something’ is statutory context, which may appear from the expressed terms, or necessary implication, of the Act. It may also appear from the general character of the legislation itself.^[9]
30. [30]
    Section 14H contains no express statement purporting to preclude the court from obtaining, and reviewing, PCC in the determination of an application for leave. It is therefore necessary to consider whether there is, as a matter of context, an implied limitation on the court’s power to obtain and review that material.

31. [31]
    Is there an implied limitation? 
32. [32]
    This question, in my view, is resolved in the negative having regard to two subsections of s 14H. 
33. [33]
    First, s 14H(1) of the Act requires three preconditions to be satisfied before leave can be granted by the court. One of those preconditions is identified in subsection (1)(a), which requires at least one question to be asked and answered, namely: whether the PCC ‘by itself’ has substantial probative value. No part of s 14H purports to limit the material that is to be considered by the court in relation to this issue. The absence of a limitation in this respect is a matter of importance. It is well settled that where a statute confers an unconfined discretion in this way, the factors that may be taken into account are similarly unconfined, except in so far as the subject-matter, scope and purpose of the statute suggest otherwise.^[10] The substance of the issue being considered in s 14H(1)(a) of the Act is sufficient, in my view, to dispose of a suggestion that the subject-matter, scope and purpose of the legislation precludes the court from obtaining, and reviewing, PCC the subject of an application for leave.
34. [34]
    Second, s 14H(1)(c) of the Act must also be satisfied before the court can grant leave. This subsection contains a public interest test. Section 14H(2) identifies the matters the court must have regard to when considering the public interest test. It states, in part:

“(2) In deciding the matter mentioned in subsection (1)(c), the court must have regard to the following matters-

…

 (h)  any other matter the court considers relevant.” 

35. [35]
    The breadth of material falling within the scope of this provision is unconfined, save where the subject-matter, scope and purpose of the legislation suggest otherwise. As the subject matter to which the test is directed is PCC the subject of the application for leave, such material can, in my view, be regarded by the court as a relevant matter. Where this occurs, the material must, by reason of s 14H(2)(h), be considered in the determination of the public interest test. That the PCC material is a mandatory consideration is, in my view, compelling. It is statutory context that works against the proposition that the court is precluded from obtaining and reviewing PCC in an application for leave.
36. [36]
    That the PCC the subject of the application for leave may be regarded by the court as a relevant matter, which must be considered under s 14H(2)(h) of the Act, is not displaced by s 14M. Section 14M is contained in Part 2, Division 2A, Subdivision 5 of the Act. Subsection (2) states:

“14MDeciding whether document or evidence is protected counselling communication

…

(2)The court may consider a document or evidence to decide whether it is a protected counselling communication.”

37. [37]
    As the heading to Subdivision 5 of the Act provides, s 14M is one of a number of ‘General provisions’. It prescribes, in part, a procedure to determine an anterior question to that considered under s 14H(1), namely whether a counselled person has a valid claim of privilege. The underlying reason for the prescription of a procedure to resolve this issue is, in my view, sufficiently clear: it is to ensure that the challenge to a claim of privilege can be properly determined whilst simultaneously protecting the confidentiality of the material in that process. Once s 14M is appreciated in this light, it is difficult to accept it is to be regarded as ‘a contrary indicator’ of statutory intent. It is, in my view, no more than a ‘general provision’ of the Act that has application to a different question for determination under the Act.
38. [38]
    I would also add that to read a limitation into s 14H of the Act such as to preclude the court from obtaining PCC the subject of an application for leave sits uncomfortably with s 14N. This provision is directed towards ‘ancillary powers’. It confers a power on the court to make the orders it considers appropriate to limit the extent of harm caused to a counselled person through, inter alia, the production of a document. Those powers are not limited to a circumstance where leave has been granted. The power is expressed in more general terms.
39. [39]
    The reading of a limitation into the Act also seems to result in an unintended consequence, which can be demonstrated by reference to an example. The example commences with a defendant who seeks disclosure of material that is the subject of a disputed claim of privilege. In such a case, the procedure provided by s 14M would apply to determine the validity of the claim of privilege. Assuming the claim is determined to be valid, attention then turns to an application for leave to compel the disclosure of that PCC. When considering the application for leave in this example, it can be asked rhetorically: what, if anything, does the court do with the knowledge gained of the PCC under s 14M? Section 14H(2)(h) provides part of the answer. It is a matter that must be taken into account where the court regards it as relevant to the public interest test. For reasons given above, it may also be relevant to s 14H(1)(a) of the Act, namely the substantial probative value test.
40. [40]
    If a limitation of the kind discussed in CDJ is read into the legislation, a tension arises in the above example. The limitation discussed in CDJ would require the PCC to be put out of the court’s mind when determining the application for leave. This would be contrary to s 14H(2)(h) of the Act if the court considers the PCC a relevant matter. Putting to one side the impracticality associated with ignoring knowledge of the contents of the PCC when determining the question of leave, the tension I have identified is symptomatic of a limitation that does not arise and ought not be read into the legislation.
41. [41]
    Whilst it is my view that s 14H should not be construed subject to an implied limitation of the kind discussed in CDJ, this is not to suggest the court must necessarily trawl through and consider every PCC document to identify material that may be relevant to a defendant’s case.  The extent to which the material is to be examined will turn on the facts and circumstances of each case. An important document in this context is the application for leave.  The application, read in conjunction with supporting submissions and material, in my view, goes a long way to framing the extent of enquiry to properly exercise the power conferred by s 14H of the Act.
42. [42]
    Here, Mr Dighton is to be complimented on the application for leave and supporting material. The application is advanced on a specific basis, namely an apprehension that the PCC includes relevant discussions between the counselled persons and counsellors co-incident with the timing of fresh and further disclosures to police. When viewed in this light, the application suggests that particular attention ought be given to the PCC for the period February 2019 up to and about 5 May 2019. I will now deal with each of the bundles of documents produced with respect to A and B in this context.

Can leave be granted under s 14H of the Act?

43. [43]
    As I have already observed, the material produced in response to the order of 12 January 2021 comprises 92 pages with respect to A, and 113 pages with respect to B.
44. [44]
    I have examined this material, with particular attention given to the records leading up to, and around, the time of B’s second interview with police. It can be observed that a limited amount of the material examined was created during this period of time.
45. [45]
    The review of the PCC reveals there are no records of disclosures or discussions of the kind apprehended by the defendant. This is true for all of the records, not just those relevant to the particular time period of interest to the defendant.
46. [46]
    As a consequence, I am not satisfied the PCC has substantial probative value as contended by the defendant for the purpose of s 14H(1)(a) of the Act.
47. [47]
    It is unnecessary to consider ss 14H(1)(b) and (c) of the Act because the application for leave must fail given paragraph [46].

Mr Webber’s written and oral submissions

48. [48]
    Mr Webber provided considerable assistance to the court, both in writing and oral submissions. When making submissions in the absence of the crown and defendant, he quite properly drew my attention to parts of the PCC that were not anticipated by the application for leave as framed, but may give rise to an argument that disclosure is necessary to enable the defendant to make a full defence.
49. [49]
    Whilst I am grateful for Mr Webber’s assistance, I am not persuaded that the particular parts of the PCC to which he drew my attention have ‘substantial’ probative value for the purpose of s 14H(1) of the Act.
50. [50]
    The value of this aspect of the PCC material, if any, to the defendant arises only if the relevant passages in the documents are read in isolation from the whole, and out of context.  To read the passages in this way is, in my view, unfair to the counselled persons.
51. [51]
    If the limited passages to which my attention was drawn were disclosed and adduced at trial, the counselled persons would, in my view, be entitled out of fairness to have those passages put into their proper context. This could only occur if privilege was waived in relation the balance of the PCC, the large proportion of which would be irrelevant to the trial and of no probative value. That the counselled persons would be required to waive privilege in relation to the balance of the PCC material to avoid unfairness is, in my view, a strong indicator that the public interest in admitting the material into evidence is substantially outweighed by: (1) preserving the confidentiality of the communication; and (2) protecting the counselled persons from harm.

Conclusion

[52]  The parties, quite apart from the application for leave, agreed an order was required in relation to privileged material that has already been disclosed in the proceeding. Accordingly, I will hear from the parties as to the agreed terms of orders that reflect their agreement, as well as the outcome of these reasons for judgment.