R v BRN (No. 2)[2022] QDCPR 42

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The defendant is charged on indictment with a total of 20 alleged offences against two complainants. The charges allege the sexual abuse of two brothers at times between early 1976 and late 1994. The defendant is the older cousin of the two complainants. He was not charged with the alleged offences until March 2019. One of the complainants, NSG, is deceased having passed away recently with motor neurone disease. In May 2020, Porter QC DCJ made orders dismissing an application by the defendant to sever the charges and permitting the prosecution to admit NSG’s statements at the defendant’s trial pursuant to section 93B of the Evidence Act 1977 (Qld) (‘EA’).^[1] The other complainant is GJL. On 24 July 2020 the defendant applied for leave to subpoena, inspect, and adduce evidence of counselling records relating to GJL. He is a ‘counselled person’ according to the definitions in the EA and I will refer to him as such. The orders sought by the defendant expressly related to ‘protected counselling communication’ (‘PCC’) as that term is defined in Part 2, Division 2A of the EA.
2. [2]
   As I will discuss, such material may not be produced, inspected, adduced, or used without leave of the court.^[2] The court may not grant leave unless it is satisfied of three things. First, that the PCC 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’. Secondly, that ‘other documents or evidence concerning the matters to which the communication relates are not available’. Thirdly, the public interest in disclosing the PCC substantially outweighs the public interest in preserving the confidentiality of counselling and protecting the counselled person from harm.^[3]
3. [3]
   The application came before me in Gympie in late 2020. Since then, material has been gathered, written submissions filed, and oral submissions made to the court. This occurred across several dates in Gympie and more recently in Maroochydore. At one stage orders were made to ensure the defendant was given access to all the counselling records that did not amount to PCC.^[4] For a time, the application was effectively paused at the request of the parties as they awaited the outcome of the litigation that resulted in the decision of Applegarth J in TRKJ v Director of Public Prosecutions (Qld) & Ors; Kay v Director of Public Prosecutions (Qld) & Ors [2021] QSC 297 (‘TRKJ & Kay’). That decision was delivered on 16 November 2021. The defendant then sought further time to consider the reasons of Applegarth J and to file additional submissions. Such submissions were to be filed by 28 January 2022. It was anticipated the further submissions of the defendant would address (at least) the basis upon which it was said the documents he sought would, in light of the material that had been disclosed, have substantive probative value,^[5] and whether, and on what basis, I should peruse the documents for myself to decide the questions raised in the application. However, on 30 January 2022 counsel for the defendant, by email to my associate, advised that in the end she did not intend to make further submissions. As such I am to decide the application based on the material filed, and submissions made, to date.
4. [4]
   The written material is as follows.

1. Application filed 24 July 2020;
2. Counselled person’s submissions filed by leave on 15 September 2020;
3. Defendant’s submissions filed on 2 November 2020;
4. Counselled person’s further submissions filed on 6 November 2020;
5. Prosecution submissions filed 3 February 2021; and
6. Further prosecution submissions filed on 12 April 2021.

5. [5]
   The written material was supplemented by oral submissions made in Gympie on 16 November 2020 and Maroochydore on 18 June 2021. It is helpful to commence with a summary of the position of the defendant as the applicant in this proceeding.

The defendant’s position

6. [6]
   The defendant’s written submissions commence

[t]his application is ultimately to secure the application’s (sic) judge to consider the material the subject of subpoenas and decide whether any of the material can be used to assist the applicant in obtaining a fair trial. This is a trial where serious allegations of sexual misconduct have been levelled by the complainants at the applicant. Any material which tends to undermine the credit and reliability of the complainants, or suggest any motive for fabricating the allegations, or any inconsistencies are going to be relevant matters for cross-examination of the complainant.

…

Material which demonstrates a contradiction or significant inconsistency about the allegations has substantial probative value.

7. [7]
   The defendant submitted that the issues arising from the application cannot be decided without the judge examining the documents or, in some other way, being sufficiently informed about their contents. Otherwise, the defendant made no argument about how or why the court could be satisfied the statutory test has been met.
8. [8]
   At the hearing on 16 November 2020 the defendant’s counsel confirmed that she was asking the court to examine the documents and make ‘a forensic decision’ about what might be disclosed to the defendant.^[6] I indicated to defence counsel my preliminary view that before any question of the court inspecting the documents arose, it was necessary for the defendant to demonstrate a real prospect that they contained material of substantial probative value.^[7] Counsel agreed that a sensible approach was for her to secure as much material as she could (that was not PCC) to see if that might assist in demonstrating, by inference, that there was PCC of substantial probative value.^[8] Orders were made to facilitate the delivery of that material to the defendant’s lawyers and the matter was adjourned.
9. [9]
   In February 2021 in Gympie, I heard and determined objections to the disclosure of the documents that were agreed not to be PCC. The ‘non-PCC’ material was disclosed, and the application came before me in Maroochydore on 18 June 2021. By this time, I had delivered my decisions in R v TRKJ [2020] QDCPR 124 and R v Kay [2021] QDCPR 10, and in both of those cases applications had been made to the Supreme Court for orders in the nature of certiorari to quash the decisions I made to dismiss those applications. At the hearing of this application on 18 June 2021, defence counsel confirmed that she had received and considered the non-PCC material but said she was in no better position to advance an argument about the existence of substantially probative material than she had been in late 2020.^[9] It was also the case that, because the decisions were not publicly available, defence counsel was not aware of my decisions in TRKJ and Kay, or the decision of Long SC DCJ in R v CDJ [2020] QDCPR 115. It was proposed that defence counsel should have the opportunity to consider (at least) those decisions and to make further submissions.^[10] The application was adjourned, and directions were given to facilitate the filing of further written submissions by 1 July 2021.^[11] No further submissions were filed.
10. [10]
    On 30 September 2021 the application was listed for mention by the court to raise two matters. The first was the then recent decision of Williamson QC DCJ in R v LFC [2021] QDCPR 60, where his Honour held that Part 2, Division 2A of the EA should not be read as limiting the ability of the court to peruse PCC to decide the issues raised by section 14H.^[12] The second was the fact that the applications to the Supreme Court in TRKJ and Kay had been heard by Applegarth J who had reserved his decisions. Counsel for the defendant submitted that it would likely assist to have the decision of Applegarth J before deciding the defendant’s application and that, in any event, she wished to make further written submissions addressing the decision in LFC. The parties were given leave to file further submissions by 22 October 2021 (which was later extended with the consent of the parties). No further submissions were filed.
11. [11]
    On 17 January 2022 the court listed the matter for mention. The defendant’s solicitor appeared. The defendant’s lawyer had requested the prosecution provide a copy of the evidence given by the counselled person in a criminal proceeding against another person. This evidence was recorded in Gympie in late 2021. The defendant’s submission was that this evidence might be relevant to matters to be decided in this application. The prosecution said the transcript of the evidence would be provided that same day and the deadline for the filing of material was extended until 28 January 2022, which was, as noted above, further extended to 30 January 2022. On that day counsel for the defendant advised she did not intend to provide any further submissions.
12. [12]
    The result is that, despite counsel for the defendant indicating at various times an intention to make submissions about the implications of the non-PCC material, the decision of Williamson QC DCJ in LFC, the decision of Applegarth J in TRKJ & Kay, and the implications of the counselled person’s evidence in another trial, no such submissions were made. The only real submission of the defendant in support of the present application is the written submissions of 2 November 2020, referred to above, where it was asserted that the court should examine the documents to make forensic decisions about what should be disclosed to the defendant in the interests of securing a ‘fair trial’.

The position of the other parties

13. [13]
    The prosecution submissions did not address the critical question of how the court is to decide an application of the present kind and whether the court can, should, or must peruse the documents that are PCC for itself. In keeping with what was the practice of the prosecution (at least at that time) the prosecution wished to avoid engaging with the issues the court had to decide. As well, the prosecution already had in its possession material that was undoubtedly PCC and had disclosed this material to the defendant.^[13] As I said to counsel who appeared for the prosecution on 16 November 2021 at Gympie, it was very surprising that the Director of Public Prosecutions did not seek to explain how this occurred or to be heard in relation to what was to be done.^[14]
14. [14]
    The counselled person’s lawyers have perused the documents that are the subject of the application. A schedule of what was, and was not, PCC was prepared and informed the decision about what non-PCC material could be disclosed to the defendant. The defendant did not dispute the counselled person’s characterisation of what was, or was not, PCC. In relation to the material that was PCC, the counselled person submitted ‘there would be certain documents for which the application … ought to be refused.’ This reflected the position of the counselled person’s lawyers that some of the documents had ‘probative’ value as noted in the schedule. The counselled person did not concede these documents had substantial probative value in the context of the test set by section 14H of the EA. That is unsurprising. The counselled person had access to the documents but not to the defendant’s instructions. The defendant was in the reverse position. Like everyone involved in applications under this ill-designed legislation, the defendant and counselled person were not in possession of all the facts necessary to make properly informed submissions about the probative value of the documents.
15. [15]
    It will be necessary to return to the schedule prepared by the counselled person’s lawyers. But first something should be said of the legal framework relevant to applications such as the present.

The legal framework

16. [16]
    The legislation governing access to PCC is found in Part 2, Division 2A of the Evidence Act 1977 (Qld). It was introduced by legislation passed in March 2017 and commenced in late 2017.^[15] Subdivision 3 applies to the present proceedings^[16] and creates what is described in the Explanatory Notes accompanying the Bill as a ‘qualified privilege’.^[17] The privilege is expressed in the following terms:

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

17. [17]
    Section 14G permits an application for leave of the court, and includes a requirement that notice of the application be given to the ‘counselled person’. This is a defined term that means ‘a person who … is being, or has at any time been, counselled by a counsellor; and … is, or has at any time been, a victim or alleged victim of a sexual assault offence’. There follows the provision governing whether leave will be granted:

14H Deciding whether to grant leave

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. (i)
      preserving the confidentiality of the communication; and
   2. (ii)
      protecting the counselled person from harm.

2. In deciding the matter mentioned in subsection (1) (c), the court must have regard to the following matters—
   1. (a)the need to encourage victims of sexual assault offences to seek counselling;
   2. (b)that the effectiveness of counselling is likely to be dependent on maintaining the confidentiality of the counselling relationship;
   3. (c)the public interest in ensuring victims of sexual assault offences receive effective counselling;
   4. (d)that disclosure of the protected counselling communication is likely to damage the relationship between the counsellor and the counselled person;
   5. (e)whether disclosure of the communication is sought on the basis of a discriminatory belief or bias;
   6. (f)that the disclosure of the communication is likely to infringe a reasonable expectation of privacy;
   7. (g)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. 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. 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. (a)
      anyone who is not an essential person; and
   2. (b)
      an essential person, if—
   1. (i)
      the counselled person asks that the essential person be excluded; and
   2. (ii)
      the court considers excluding the essential person would serve a proper interest of the counselled person.
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. The court must state its reasons for granting or refusing to grant the application.
7. If the proceeding is a trial by jury, the court must hear and decide the application in the absence of the jury.
8. In this section—

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

18. [18]
    Section 14A provides a definition of what is PCC. It 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.

19. [19]
    While both the counselled person and counsellors are to be given notice of any application,^[18] it is clear that the privilege inheres in the counselled person. That is because it is only the counselled person who is permitted, in certain circumstances, to waive the privilege.^[19]
20. [20]
    There are two other provisions to be noted. Section 14M is the only provision that expressly permits the court to examine or inspect a document or evidence that might be PCC. The section provides:

14M Deciding whether document or evidence is protected counselling communication

1. This section applies if a question arises under this division in relation to a proceeding to which subdivision 2 or 3 applies.
2. The court may consider a document or evidence to decide whether it is a protected counselling communication.
3. While the court is considering the document or evidence, the court must exclude from the room in which it is sitting—
   1. (a)anyone who is not an essential person; and
   2. (b)an essential person, if—
   1. (i)
      the counselled person to whom the document or evidence relates asks that the essential person be excluded; and
   2. (ii)
      the court considers excluding the essential person would serve a proper interest of the counselled person.
4. The court may make any other order it thinks fit to facilitate its consideration of the document or evidence.
5. This section applies despite sections 14D and 14F.

21. [21]
    The preceding section, 14L, is titled ‘Standing of counsellor and counselled person’ and provides:

1. This section applies if—
   1. (a)a counselled person or counsellor is not a party to a proceeding to which subdivision 2 or 3 applies; and
   2. (b)the court is deciding whether a document or evidence relating to the counselled person or counsellor is a protected counselling communication.
2. The counselled person or counsellor may appear in the proceeding, including any appeal.

22. [22]
    Section 14L appears to limit the right of the counselled person to appear in these applications. I did not have to decide the question in TRKJ,^[20] and the parties have not put this issue in dispute in the present application.^[21] The counselled person appeared, represented by lawyers, and made submissions about issues beyond what documents were PCC without the objection of any party. The defendant and prosecution may be taken, in this case, as waiving any claim that the counselled person should not be heard on the issues raised by section 14H. While I do not have to decide the standing of the counselled person in this application, I have now had the benefit of the decisions in CDJ (at [68]) and TRKJ & Kay (at [48]-[51]). I am of the view that the counselled person has no statutory right of appearance, apart from the limited right conferred by section 14L. In this regard I agree with the statements of Applegarth J in TRKJ & Kay where his Honour said^[22]

[T]he standing conferred by s 14L(2) is the right to appear at the stage of the proceeding in which the court is deciding whether a document or evidence ‘is a protected counselling communication’. If the court is not deciding that question, either having not been called upon to decide it or having decided it, then s 14L does not apply.

…

The absence of a statutory right to appear at stages of the application for leave when the court is not deciding whether a document or evidence is a protected counselling communication does not necessarily preclude the court granting leave to appear at that stage, if necessary.

23. [23]
    There remains the question of whether the legislation implies that the court has the power to inspect the documents to decide the issues presented by section 14H. In TRKJ it was not necessary to come to a concluded view, though I was inclined to think that no implied power existed. In R v LFC^[23] Williamson QC DCJ reached a different conclusion. His Honour decided there was no implied limitation preventing the inspection of the documents.^[24] However, Williamson QC DCJ made it clear he did not 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.

24. [24]
    A similar view was expressed by Applegarth J in TRKJ & Kay. His Honour agreed with much of the reasoning of Williamson QC DCJ in LFC and concluded

103. [103]
     On the point of statutory interpretation, I conclude that the court’s power to hear and determine an application for leave under Subdivision 3 of Division 2A includes an implied power to inspect and consider protected counselling communications for the purpose of deciding such an application.

25. [104]
    The fact that a power exists for the court to itself inspect documents does not mean that it will be necessary or appropriate for a judge to exercise the power in most cases. It certainly does not mean that the power should be exercised as a matter of routine in applications under Subdivision 3. The implied power does not exist to cure deficiencies in proof by the applicant for a grant of leave.

25. [105]
    Its too frequent exercise would undermine a purpose of the provisions which is to restrict access to protected counselling communications.

25. [25]
    In an earlier passage, Applegarth J made it plain that the court’s power to inspect documents for the purposes of section 14H would only be exercised in exceptional circumstances.^[25] His Honour stated:

98. [98]
    In summary, it is possible to imagine occasional cases where the court’s own inspection and consideration of the material will assist the court in a finely-balanced case to determine the question of leave.

99. [99]
    The occasional need for a court to inspect documents in a finely-balanced case before deciding whether to grant an application for leave or to decide the conditions upon which leave is granted, supports the existence of an implied power to inspect and consider the documents. Recognition of the power is not inconsistent with the subject matter and purpose of the provisions.

26. [26]
    As I have already noted, each party to this application was aware of, and had the opportunity to make submissions in respect of, the decisions in LFC and TRKJ & Kay. No submissions were made, from which I assume no parties wished to suggest either decision was wrong. In the circumstances I proceed on the basis that there is an implied power permitting the court to inspect the documents in finely balanced cases. But the existence of such a power does not reduce the burden on an applicant seeking to demonstrate the PCC will have substantial probative value. I remain of the view I expressed in TRKJ (at [40]) that

there is much in the extrinsic material to suggest that the parliament intended to favour the protection of counselling over the interests of securing a ‘fair’ trial.^[26] 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’.^[27] 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 a ‘protected counselling communication’. Such is not limited to counselling arising from the alleged offence or offences.^[28] As well, the 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 justified having regard to ‘the public interest in encouraging people who have been sexually assaulted to seek therapy to assist in their recovery’.^[29] 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.

Application of the legal framework in this case

27. [27]
    The defendant has not made any meaningful submission as to how the court could be satisfied the PCC ‘will, by itself or having regard to other documents or evidence produced or adduced by the applicant, have substantial probative value’.^[30] The submission of the defendant, set out at paragraph [6] above, does not address the criteria set by section 14H. Contrary to the implication of the defendant’s submissions, the text of this legislation does not require a ‘judge to consider the material the subject of subpoenas and decide whether any of the material can be used to assist the applicant in obtaining a fair trial,’ especially where the defendant has made no attempt to discharge his burden of demonstrating there is material that will be of substantial probative value. As noted by Applegarth J, even if the court is empowered to inspect the documents, this ‘power does not exist to cure deficiencies in proof by the applicant for a grant of leave.’^[31]
28. [28]
    The defendant’s argument rises no higher than an assumption that at some stage the counselled person discussed these allegations with his counsellor which in turn creates the possibility that he said things that are contradictory, or which otherwise undermine his credit. While there is some evidence to support the first proposition,^[32] the second proposition is essentially speculative. The defendant has not pointed to any evidence that would permit the court to conclude it is probable or likely that the counselled person made inconsistent statements or revealed a motive to make a false allegation when talking to the counsellor.
29. [29]
    If it is reasonable to infer that it is probable or likely that the counselled person said things that are inconsistent or otherwise relevant to his credit, I am still not satisfied the defendant has shown this will have substantial probative value. I do not accept the defendant’s submission that ‘[m]aterial which demonstrates a contradiction or significant inconsistency about the allegations has substantial probative value’ is a statement that is always, or even commonly, correct. It may be accepted, as the defendant asserts, that proof of inconsistent statements by the counselled person would be relevant to his cross-examination. But mere relevance does not equate to substantial probative value. The importance of apparently inconsistent statements will vary considerably from case to case and will depend upon several factors. Here, the allegations concern conduct that is alleged to have occurred more than 30 years ago. Such delay may go some way to diminishing the force of apparent inconsistencies. As juries are commonly directed, ‘Some inconsistency is to be expected, because it is natural enough for people who are asked on a number of different occasions to repeat what happened at an earlier time, to tell a slightly different version each time.’^[33] There is no reason to think that, if there are inconsistencies revealed in the PCC, they are of such significance to imbue the communications with substantial probative value.
30. [30]
    In my view, the arguments of the defendant are no more than speculation about the existence of possibly relevant material. They provide no reasoned basis for a conclusion the requirement of section 14H(1)(a) has been met. As such, this is not an application in which the considerations are ‘finely balanced’, so that the court should inspect the documents for itself. To do so in this case would be to wrongly ‘satisfy curiosity or indulge in speculation that something important may be turned up’.^[34]
31. [31]
    As I have noted, the counselled person’s lawyers provided a schedule summarising what documents were PCC and the counselled person’s lawyers’ opinion about whether some material was ‘probative’. The categories employed were ‘not probative’, ‘partially probative’ and ‘probative’. In my view these assessments by the counselled person’s lawyers are insufficient to discharge the burden on the defendant to show there is material that will be of substantial probative value. There is a large gap between what is merely probative and what is substantially probative. As has been discussed in other cases

the adjective “substantial” connotes very important, ample or considerable. “Substantial probative value” requires a higher standard of relevance than significant probative value, which itself connotes something more than mere relevance.^[35]

32. [32]
    A concession that some material is ‘probative’ falls well short of a concession that it is substantially probative and is not of itself enough to require the court to inspect the documents to resolve the issue because it is ‘finely balanced’.
33. [33]
    The further written submissions on behalf of the counselled person included the statement:

It is accepted that inconsistencies in relation to the counselled person’s version of the offending or any denials that the offending occurred contained in the records, would be substantially probative.

34. [34]
    For the reasons set out at paragraph [29] I do not accept that the mere existence of an inconsistency is of substantial probative value. It is easier to accept that evidence of a denial by the counselled person that the acts now complained of took place, or an admission the allegations are untrue, would be of substantial probative value. Given this statement in the outline, it is to be expected that if such material existed the counselled person’s lawyers would have conceded it should be disclosed. No such concession was made and in the absence of some other basis for concluding material of this kind is to be found in the documents, it would be speculative to think it exists.
35. [35]
    As the defendant has not demonstrated there is PCC of substantial probative value, his application must be dismissed. There is no need to consider the issues raised by subsections 14H(1)(b) and (c), or the statement of harm provided by the counselled person.

Material already disclosed

36. [36]
    Some material that appears certain to be PCC is in the possession of the prosecution and has already been disclosed to the defendant. This concerned, at least, a statement of Dr Clive Fraser. The summary of facts provided by the prosecution states that the counselled person disclosed the alleged offending to counsellors and medical professionals in August or September 2018. This implies that Dr Fraser was one of the persons to whom the counselled complained. Section 14F prohibits ‘any person’ producing, adducing, using, or disclosing PCC. That would include the prosecution. Absent a grant of leave, the prosecution cannot adduce evidence of these communications, even if they would otherwise be admissible as evidence of ‘preliminary complaint’.^[36] As the prosecution have not made their own application for leave, I assume that evidence of the communications is either not admissible or the prosecution does not wish to lead it at the defendant’s trial.
37. [37]
    Section 14F goes beyond prohibiting the tender of evidence of the communications. It prohibits the use and disclosure of the communications as well. The prohibition in section 14F is comprehensive, and it is unnecessary for me to make any order about any PCC already in the possession of the parties.

Orders

38. [38]
    For these reasons the court orders:

1. The defendant’s application of 24 July 2020 is dismissed; and
2. The proceeding is adjourned to the sittings of the District Court at Gympie commencing 18 July 2022.