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- Unreported Judgment
R v WEV QDCPR 53
DISTRICT COURT OF QUEENSLAND
R v WEV  QDCPR 53
THE QUEEN (Applicant)
WEV (anonymised) (Respondent)
District Court at Mount Isa
27 June 2022 (ex tempore)
14, 16 and 27 June 2022
EVIDENCE – ADMISSIBILITY – PRE-TRIAL APPLICATION – PROTECTED COUNSELLING COMMUNICATIONS – where defendant charged with child sexual offences – where Crown applied for leave to use ‘protected counselling communications’ – where defendant did not appear on the application – where leave was granted to subpoena documents – where Department of Education objected to identification of ‘notifier’ under Child Protection Act 1999 (Qld) – whether necessary for court to consider the documents – whether s 14H Evidence Act 1977 (Qld) considerations are satisfied.
Evidence Act 1977 (Qld) s 14A, s 14B, s 14F, s 14H
Child Protection Act 1999 (Qld) s 186(3)
R v Pratt (No. 2)  QDCPR 42
TRKJ v Director of Public Prosecutions (Qld) & Ors; Kay v Director of Public Prosecutions (Qld) & Ors  47 QLR;  QSC 29
Walklate A for the Applicant
Cousen AJ for the Counselled Person
Office of the Director of Public Prosecutions for the Applicant
Legal Aid Queensland for the counselled person
- The defendant in this case is charged on indictment with five counts of indecent treatment against the complainant, a child born in 2006. The complainant was a friend of the defendant’s daughter and the defendant was the complainant’s foster carer intermittently between 2017 and 2019.
- There are two separate instances of sexual offending alleged to have occurred.
- Count 1 relates to an incident in 2018 when it is alleged the defendant kissed the complainant on the lips, neck, and over the chest and then her inner thighs over the top of her clothing.
- Counts 2 to 5 are alleged to have occurred on a single occasion in 2019 when the complainant was older and no longer lived with the defendant’s family. On that occasion, it is alleged that the defendant touched her on the thigh before kissing her on the lips (count 2), touched her thighs and rubbed her vagina over her clothing (count 3), went to another room, returned, exposed his erect penis, had her hold his penis in her hand and masturbate him (count 4), and the complainant then put the defendant’s penis in her mouth and performed oral sex on him until he ejaculated around her mouth (count 5).
- The offending was first disclosed in a counselling session with a school guidance officer on the 28th of August 2020. These disclosures are summarised at paragraph 5 of the outline of submissions on behalf of the applicant dated 11 April 2022 in support of the application. The guidance officer was obliged to report the matter. As a result of that, about a month later police conducted a section 93A interview with the complainant.
- In October 2020, the defendant participated in an interview with police and denied the offending.
- On 11 April 2022, the Crown applied for leave to adduce evidence of the complainant’s protected counselling communications with the guidance officer, and for the production of protected counselling communication notes between the guidance officer and the complainant.
- I am now dealing with what is, in effect, the third stage of that application. In order to understand it and the matters I have to consider, it is necessary to set out some of the chronology to date.
- The starting point is that the complainant is a “counselled person” within the meaning of the definition in s 14B of in the Evidence Act 1977. And I will refer to her in that way.
- The orders sought by the applicant Crown expressly relate to “protected counselling communication” as defined in Part 2, Division 2A, s 14A of the Evidence Act. Such material may not be produced, inspected, adduced in evidence, or otherwise used without the leave of the court: section 14F.
- Pursuant to s 14H(1), the court may not grant leave unless it is satisfied of three things. First, that 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”.
- Second, that “other documents or evidence concerning the matters to which the communicate relates are not available”.
- Third, “the public interest in admitting the communication into evidence substantially outweighs the public interest in (i) preserving the confidentiality of the communication; and (ii) protecting the counselled person from harm.”
- The application first came before a different judge on circuit. On that occasion, the applicant Crown provided a written outline of submissions, as did the counselled person, who was legally represented. The defendant did not seek to be heard on that application, albeit that he is legally represented.
- The Crown submitted that it intended to call the guidance officer as a preliminary complaint witness, and that the statement she had provided to police (which had already been disclosed in the brief of evidence to the Crown and to the defence) exposed potential inconsistencies in the complainant’s section 93A evidence. The applicant Crown submitted that the evidence of the guidance officer will be highly probative in relation to the credibility and reliability of the complainant.
- The circumstances in which the Crown came to make that application are unusual. It appears that the police had already obtained a statement from the guidance officer. It set out in some detail what were protected counselling communications. The Crown then relied upon that statement to make an application for leave to use the protected counselling communications. In effect, that application retrospectively sought to regularise the statement which the Crown had already received, and which had been disclosed to the defendant. The defendant did not wish to be heard on that application.
- At that stage of the proceeding, which I will refer to as the first stage, the counselled person in their written outline accepted that the credibility and reliability of the counselled person would be a central issue at trial. It accepted that the statement of the guidance officer and any notes she made at that conference with the counselled person on 28 August 2020 would amount to preliminary complaint evidence, and conceded that the guidance officer’s statement would be of substantial probative value in the defendant’s trial.
- The counselled person was under the age of 16 and was not able to waive privilege in the statement. For that stage of the application, the counselled person’s legal representative joined with the Crown in submitting that leave should be granted for the statement of the guidance officer to be used in the trial.
- Of course, the parties already knew what the guidance officer’s statement contained. However, the outline of the counselled person went on to say, with respect to any notes from that conference, at paragraph 27 of the outline:
That the notes would have the potential to be of substantial probative value if they contained greater detail regarding the allegations than that contained in the statement.
- The counselled person’s legal representative conceded that a subpoena should issue to the Department of Education for the court to obtain those records. That is, any notes made during the conference. An order was also sought allowing the counselled person’s representatives to inspect the subpoenaed material and make further submissions regarding whether those records were protected counselling communication and whether they have substantial probative value.
- In that way, the first stage of the application was not disputed or challenged by the legal representatives of the counselled person. That is, they joined with the applicant Crown in submitting that the Crown should be granted leave to use and adduce evidence of the statement of the guidance officer; that a subpoena should issue to obtain any notes the guidance officer took while speaking to the counselled person; and an order should be made allowing the legal representatives of the counselled person to inspect the subpoenaed material to assist the court with the application of 14H of the Act.
- The first judge made an order on 23 May 2022 giving effect to those submissions. Paragraph 2 of that order stated:
Leave to copy or adduce evidence of the privileged document outlined in paragraph 1 of this order is granted to both the Crown and the defendant’s legal representatives.
- The reference to the privileged document was a reference to the statement of the guidance officer, which was accepted to be otherwise privileged pursuant to those provisions.
- Leave was also given to the applicant Crown’s legal representatives to issue a subpoena to the Department of Education. Consequential orders were made about production of the subpoenaed documents, granting leave only to the counselled person and her legal representatives to inspect, copy and adduce records produced under the subpoena. The orders also made provision for consequential directions such as further outlines of submissions.
- The next (or second) stage of the application came before me on circuit. The subpoenaed documents were produced to the court by the Department of Education. However, in those documents the identity of the guidance officer was redacted, as was a large portion of those documents. The Department of Education advised the court by covering letter that the protected counselling communication notes contained confidential information pursuant to section 186(3) of the Child Protection Act 1999, and that the unredacted notes could only be released by the leave of the court. In its letter, the Department objected to the production of the documents on the basis that the “notifier” listed in the documents had not consented to their identity being given.
- I invited the parties to provide further oral and written submissions about that issue. They did so. The identify of the ‘notifier’ was already known, by virtue of the earlier statement. I was satisfied, on the basis of their written and oral submissions, that it was appropriate to grant leave to the counselled person’s representatives to inspect and copy the unredacted records from the Department of Education. I ordered the registry to provide the unredacted records from the Department of Education to the legal representatives for the counselled person.
- The matter was then adjourned for the next (third) stage of the application. That was for the counselled person’s legal representatives to consider the unredacted records and make submissions about those, including whether those records were protected counselling communications and whether they met the requirements of section 14H. That third stage of the application was listed before me for hearing.
- The counselled person provided a written outline of submissions to assist the court, dated 20 June 2022. I heard oral submissions from the legal representatives for the counselled person and the applicant Crown. Again, the defendant elected not to appear, or play any part, in this stage of the application.
- I do not have the benefit of any reasons for the decision made by the judge on 23 May 2022, in making the previous orders, including, in making the orders permitting the parties to adduce evidence of the statement of the guidance officer. However, the court must have been satisfied that that privileged document, the statement of the guidance officer, met the requirements of section 14H.
- Before turning to consider this third stage of the application and the positions taken by the parties in it (which are different from the positions they took at the first and second stages), I will deal with two preliminary legal issues.
- The first is the standing of the counselled person to be heard on the section 14H issues.
- In considering this, and indeed, the merits of this application, I have been considerably assisted by the decision of Applegarth J in TRKJ v the Director of Public Prosecutions (Qld) & Ors; Kay v Director of Public Prosecutions (Qld) & Ors  QSC 297;  47 QLR, as well as the recent decision of Cash QC DCJ in R v Pratt (No. 2)  QDCPR 42, particularly paragraphs 23 to 26 inclusive.
- I respectfully adopt the same approach as Cash QC DCJ in that case. For the purposes of this application, the court does not have to decide the question in TRKJ and the parties have not put the issue of standing in dispute in the current application. The counselled person has appeared, represented by lawyers, and made submissions about issues beyond what documents were protected counselling communications, without the objection of any party. The prosecution may be taken, in this case, to have waived any claim that the counselled person should not be heard on the issues raised by section 14H. If there is any doubt about that, both parties submit that leave ought be granted to the counselled person to make submissions with respect to section 14H considerations. I have granted leave for that purpose.
- The second preliminaryissue is the proper process for deciding the application. I invited the parties to assist me with submissions on whether I should, or must, peruse for myself the documents that are the notes, to decide the section 14H issues. Particularly having regard to those decisions of the court I have referred to, which are usefully summarised in Pratt (No. 2).
- My present view, for the purposes of this application, is that 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 that the protected counselling communication will have substantial probative value.
- I was very conscious of the qualifications expressed in TRKJ to the effect that the fact that a power exists for the court to, itself, inspect documents does not mean it will be necessary or appropriate for the court to exercise the power in most cases. And it does not mean the power should be exercised as a matter of routine.
- My preliminary view was that it was not appropriate or necessary to inspect the documents. But after hearing further oral submissions from both parties, I determined that, in the very particular factual circumstances of this case – which are unusual – it would assist the court to determine the question of leave if I did inspect the documents.
- In making that decision, I also had regard to the fact that the documents produced in answer to the subpoena were, themselves, extremely limited. I elected to close the court and inspect those documents. I then heard submissions in closed court from the counselled person about those documents. Both parties submitted that the court, in the circumstances of this case, should inspect the notes to assist it in making a decision. That was the course I took.
- I gave weight to all of the applicant Crown’s legal submissions in writing and orally, as well as those from the counselled person, in applying the legal framework in section 14H to this case.
- I am satisfied of the following matters.
- There are eight pages produced in answer to the subpoena. Of those, two pages do not meet the definition of protected counselling communication records at all. There are four pages which constitute the statement of the guidance officer, leave to adduce evidence of which has already been granted by a different judge on 23 May 2022.
- Therefore, questions of compliance with section 14H for the notes fall to be considered in the context that that document is already available and, pursuant to an order made by the court on 23 May 2022, able to be adduced as evidence in the proceeding.
- There remain two pages of documents which are the subject of this stage of the application. I am satisfied that those notes are protected counselling communications within the meaning of the Act. They are records of communications between the counselled person and the guidance officer at her school she attended upon for the purpose of counselling.
- There are three limbs of the test in section 14H that the court must be satisfied of before it could grant leave for the notes to be used.
- The first limb of the test is that the notes will, by themselves, or having regard to other documents or evidence produced or adduced by the applicant, have substantial probative value.
- It is accepted that the credibility and reliability of the counselled person would be a central issue at the trial. It is also accepted that any version or account provided by the counselled person to the guidance officer which provides some further detail in addition to that which was noted in the guidance officer’s statement to police, would at least have the potential to have substantial probative value.
- However, it is important to bear in mind that the test is will have substantial probative value, either by itself or having regard to other documents or evidence.
- In this case, I cannot be satisfied to the requisite standard that the protected counselling communication contained in the note will, by itself, or having regard to other documents or evidence, have substantial probative value in the trial.
- The Crown applicant’s legal representatives particularly pointed to the potential previous inconsistent statement as between the guidance officer’s statement to police and what was disclosed in the counselled person’s section 93A statement. That is, the Crown emphasised the fact that there are at least two inconsistencies between the counselled person’s section 93A statement and the statement of the guidance officer. The first is that the counselled person in her statement to police does not describe intercourse, whereas the guidance officer’s statement refers to the young person describing or referring to penetrative sex. The second is that the counselled person’s statement refers to two incidents, one in 2018 and one in 2019, whereas the guidance officer’s statement refers to the counselled person saying it happened only once.
- Those inconsistencies are matters which will already be able to be adduced or explored in evidence, by virtue of the earlier order made on 23 May 2022.
- The Crown also emphasises that this preliminary complaint is the first disclosure of the alleged offending at all.
- Even giving those matters weight, having considered the protective counselling communication in the note, I cannot be satisfied that the content of that will, by itself, or having regard to other documents such as the statement given by the guidance officer, have substantial probative value.
- Even if I were satisfied of that first limb of the test in section 14H, I could not be satisfied of the second and third limbs of that test.
- That is, I could not be satisfied, pursuant to subsection (1)(b), that other documents or evidence concerning the matters to which the communication relates are not available. That is because there is a detailed statement from the guidance officer already in evidence, and leave has been granted for it to be adduced in evidence. It deals with substantially the same matters as the notes the subject of this application.
- And I could not be satisfied pursuant to subsection (1)(c) that the public interest in admitting this communication (that is, the notes) into evidence substantially outweighs the public interest in preserving the confidentiality of the communication and protecting the counselled person from harm, having regard to the matters in subsection (2).
- The legal representatives for the counselled person submit that the second and third limbs of the test in particular could not be satisfied. They emphasise that the counselled person has not provided a statement of harm, that she is an especially vulnerable young person and that those matters of public interest in subsection (1)(c)(i) and (ii) and the matters in subsection (2) all weigh in favour of not granting leave. That is, the public interest in preserving confidentiality and protecting the counselled person from harm and the matters the court must have regard to in subsection (2) weigh in favour of not granting leave.
- The counselled person’s legal representative submits that leave should be refused to inspect, copy, use or adduce the notes as evidence, for those reasons.
- I accept those submissions.
- It is important, in considering these applications, to bear in mind that mere relevance does not equate to substantial probative value. The fact that preliminary complaint evidence is, of itself, relevant and admissible does not equate to meeting a test of will have substantial probative value, nor does it necessarily satisfy the requirements of the other limbs of the test.
- In my view, the applicant Crown has not satisfied the court of the necessary limbs of the test for the court to be satisfied it is appropriate to grant leave for this third stage of the application.
- For these reasons, the orders are that the Crown’s application to adduce evidence of any notes between the guidance officer and the counselled person on 28 August 2020 is dismissed.
- Other judicial officers who have had to consider and apply this legislation have described it as ill-designed, and have identified problems associated with its complexity and workability. I endorse those remarks.
- Subject to hearing further submissions from the parties, I propose to adjourn the proceedings to the District Court callover for the Mount Isa sittings on 25 August 2022.
- Published Case Name:
R v WEV
- Shortened Case Name:
R v WEV
 QDCPR 53
27 Jun 2022