R v CMA[2022] QDCPR 56

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The defendant is indicted before the Court, at Gympie, in respect of two counts of indecent treatment of a child under 12 under care.  Those offences are alleged to have occurred on a date unknown, between 29 November 2018 and 31 October 2020.  
2. [2]
   The defendant wishes to subpoena documents or records from an organisation which may be understood to have provided counselling services and support to the complainant.  The application filed 1 December 2021, is expressed as being directed at:

“All counselling and sexual abuse records referral forms, clinical notes, reports, correspondence, assessments, file information, and other documentation held by […].”

The application is further specifically expressed to be made “pursuant to section 14G of the Evidence Act 1977 (Qld)”.  It is therefore expressly directed at what is expected to include the production of “protected counselling communication”, within the meaning of s 14A of the Evidence Act 1977 (“Evidence Act”) and therefore engagement of Division 2A of Part 2 of that Act, as it relates to “sexual assault counselling privilege”.  The application is expressed to be for leave to:

“1. Subpoena ‘protected counselling communication’ records and information; and

2. Produce to a court, adduce evidence of or otherwise use ‘protected counselling communication’; and
3. Otherwise disclose, inspect or copy a ‘protected counselling communication.’”^[1]

3. [3]
   A particular issue which has arisen upon this application is as to the standing of the “counselled person” to be heard upon it, and particularly as to the determination of it having regard to the criteria prescribed in s 14H of the Evidence Act.  That is, in circumstances where it is expressly contended and apparent and not in contest that the material sought to be subpoenaed is axiomatically within the definition of “protected counselling communication”, or, at least, that there is no issue arising pursuant to s 14M of the Evidence Act, as to deciding whether something which is sought is “protected counselling communication” (“PCC”).

4. [4]
   Accordingly and on behalf of the defendant, objection has been raised as to the standing of the counselled person to be heard, as is sought and contended to be the entitlement of the counselled person, upon the Court’s consideration of this application and determination of it having regard to the criteria prescribed in s 14H.

Contextual considerations

5. [5]
   The issue arises, in the first instance, having regard to the following provisions of s 14L of the Evidence Act:

“14L Standing of counsellor and counselled person

1. (1)
   This section applies if— 

   1. a counselled person or counsellor is not a party to a proceeding to which subdivision 2 or 3 applies; and 
   2. the court is deciding whether a document or evidence relating to the counselled person or counsellor is a protected counselling communication. 
2. (2)
   The counselled person or counsellor may appear in the proceeding, including any appeal.” Some things may be immediately noted:

1. (a)
   Here the concern is with “a proceeding to which subdivision … 3 applies”, because s 14E prescribes that subdivision 3 “applies to a proceeding … for the trial or sentencing of a person for an offence, other than a proceeding to which subdivision 2 applies”.  Subdivision 2 is, by s 14C, directed in application to committal proceedings and proceedings under the Bail Act 1980, in respect of such offences.
2. (b)
   Accordingly, the “proceeding” to which s 14L necessarily refers is that upon the indictment before the Court and to which the only parties are the Crown, or prosecution, and the defendant(s).

3. (c)
   Section 14L only expressly grants a right of appearance in such a proceeding to the counselled person in the limited circumstances when:

“The court is deciding whether a document or evidence relating to the counselled person or counsellor is a protected counselling communication.”

6. [6]
   Such an approach, as opposed to one premised upon any notion of the application made pursuant to s 14G being a separated proceeding, such as to warrant consideration as to whom might relevantly be regarded as an appropriate party to it, particularly having regard to any sufficient interest in the outcome, is completely understandable in terms of the evident connection of the application with the prosecution of the indicted offences.  And so much is made clear, by the amendment, accompanying the introduction of Division 2A of Part 2 of the Evidence Act, to s 590AA of the Criminal Code, to add sub-section (2)(ka), to include for “pre-trial directions and rulings”:

“Matters relating to protected counselling communications under the Evidence Act 1977, Pt 2, Div 2A”.^[2]

It may also be noted that, by s 590AA(1), the application for such directions or rulings is premised upon the circumstances that “the Crown has presented an indictment before a court against a person”, which has definitional effect as to the right  given to “a party” to apply for any such direction or ruling.  

7. [7]
   Otherwise, it is to be noted that the provisions in Division 2A of Part 2 of the Evidence Act, expressly recognise:

1. (a)
   By s 14I, the ability of a counselled person (who is aged 16 years or more and not with an impaired capacity for giving such consent) to consent to the production, or adduction in evidence, of PCC, or, as the heading indicates, the waiver of the privilege attaching to such communications.  Such a privilege is relevantly defined in s 14F, in terms that:

“14F Sexual assault counselling privilege

A person cannot do any of the following things in connection   with the proceeding, other than with the leave of the court hearing the proceeding— 

1. (a)
   compel, whether by subpoena or otherwise, another person to produce a protected counselling communication to a court;
2. (b)
   produce to a court, adduce evidence of or otherwise use, a protected counselling communication; 
3. (c)
   otherwise disclose, inspect or copy a protected counselling communication.”; and

2. (b)
   By s 14H(3), that the prescription in s 14H(1)(c), as it relates to having regard to “protecting the counselled person from harm”, “may” be informed by consideration of “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”.^[3] 

8. [8]
   The issue as to the standing of the counselled person, particularly having regard to s 14L of the Evidence Act, was noted in my earlier decision in R v CDJ,^[4] in the context of a discussion of the role commonly taken by the prosecution, of adopting a largely neutral stance in applications of this kind.  The issue was expressly left undetermined, as not being a contested point in that proceeding.^[5]
9. [9]
   However and subsequently, a Childrens Court judge (Judge Clare SC) has also expressed views about the absence of specific expression of the standing of the counselled person in the legislative provisions, also in the context of expression of views as to the apparent inappropriateness of the usual prosecutorial stance.^[6]  It would appear that in that instance, her Honour was only prepared to hear the counselled person as to any issue arising under s 14M of the Evidence Act.^[7]
10. [10]
    Subsequently again and in the limiting context of hearing and dismissing applications brought pursuant to the Judicial Review Act 1991, in respect of determinations made in dismissing two applications for leave to subpoena protected counselling communication, Applegarth J made some observations about the standing issue.^[8]Ultimately, his Honour found no established error in any determination as to the standing of the counselled person in the applications which were the subject of the proceedings before him.^[9] However and germanely to the issues raised in this application, he did make the following observations: which commence, as I have sought to set out above, with his express rejection of views that “the proceeding” referred to in s 14L is able to be regarded as the application for leave to subpoena or otherwise use protected counselling communication, or alternatively that s 14L(2) is expressed in terms of an unrestricted right of appearance in the proceedings:

“[48] I do not share that view. Regard to the terms, context and purpose of s 14L suggests that the 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. 

[49] The terms of s 14L(1)(b) indicate that s 14L is engaged if the court is deciding whether a document or evidence “is a protected counselling communication”. One would need to read words into the section to interpret it as meaning that it applies when the court is deciding whether to grant leave in respect of a protected counselling communication.  

…

53. [53]
    The conferral in s 14L of an express right to appear on the question of whether a document is a protected counselling communication does not signal a legislative intent to displace a power in a court to grant leave to appear as a matter of discretion and in accordance with general principles governing standing at other stages. 
54. [54]
    If, as I find, s 14L does not confer standing on a counselled person (or a counsellor) to appear at all stages of an application for leave under Subdivision 3, then issues arise as to why a counselled person should be granted leave to appear when questions of leave under s 14H are being decided, and what role they or any other party should play on certain issues.”

The contentions

11. [11]
    It is to be noted that the objection which has been taken to appearance of the counselled person on this application, occurred when the application was returned to the court after, as it is understood, engagement of the processes prescribed by s 14G of the Evidence Act, which in this case involved the defendant, as applicant, notifying the Director of Public Prosecutions, as the other party to the proceeding,^[10] who in turn was required to give the counselled person a copy of the notice (because “the counselled person to whom the counselling communication relates is not a party to the proceeding”).^[11] More particularly, this objection was provoked by the express application on behalf of the counselled person for leave to be heard in that respect. That application being made in reflection of the following observations in TRKJ v Director of Public Prosecutions (Qld) & Ors; KAY v Director of Public Prosecutions (Qld) & Ors (“TRKJ”):^[12] 

“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.”

12. [12]
    Accordingly, there is acceptance, in the context of acknowledgement of the limitations as to the rights of involvement expressly granted to the counselled person pursuant to s 14L and s 14H(3) of the Evidence Act, that there is no broader statutorily provided right to be heard. But, what is sought is leave or permission to appear and make submissions at the hearing of the application pursuant to s 14G, upon a broader basis than is expressly permitted pursuant to s 14H(3)-(5). This is pressed upon the basis that:

    1. (a)
       because of the potential for prejudice to the rights and interests of the counselled person in the privilege attaching to PCC, such permission is supported by the principles of natural justice or procedural fairness; and

2. (b)
   the legislative provisions should not be interpreted as overriding such principles in the absence of plain words or necessary intendment or implication.

13. [13]
    In support of these contentions, reference is made to Onus v Alcoa of Australia Ltd,^[13] where, albeit in the context of determining a question of standing in respect of the litigation of rights of a public rather than private nature, an arguably wide approach was taken upon the basis of identification of “special interest” in the subject matter or outcome.  That is, in reference to the earlier decision in Australian Conservation Foundation Inc v The Commonwealth,^[14] some such interest beyond that of any other member of the public.
14. [14]
    Reference is also made to Annetts v McCann^[15] and the general statements of principle that:

“It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment … … an intention of the part of the legislature to exclude the rules of natural justice was not to be assumed nor spelled out from ‘indirect references, uncertain inferences or equivocal considerations’.”^[16]

And in recognition of “the common law right of the appellants to be heard in opposition to any potential finding which would prejudice their interests”.^[17] The contention is that the following observations made in TRKJ, should be adopted as being consistent with the principles noted in Annetts v McCann:^[18]

“The conferral in s 14L of an express right to appear on the question of whether a document is a protected counselling communication does not signal a legislative intent to displace a power in a court to grant leave to appear as a matter of discretion and in accordance with general principles governing standing at other stages”.

15. [15]
    Further, reference is made to s 25 of the Human Rights Act 2019 (Qld) in recognition of the counselled person’s right to privacy.  Although and perhaps more germanely, it is also pointed out that s 14H(2)(f) notes “a reasonable expectation of privacy” as being a likely infringement of disclosure of PCC and in the context of the criteria set out in s 14H(2) in contemplation of the potential compromise of the interests of the counselled person by the grant of leave. 

16. [16]
    Finally, the submissions for the counselled person note an understanding of the intended position of the prosecution, as a matter of policy, to make no submissions as to how the application for leave pursuant to s 14G ought to be determined, or to take a neutral stance on the issue, and contends that the absence of a contradictor would deny procedural fairness to the counselled person in protection of that person’s interests.
17. [17]
    The submissions for the defendant do not deny the power of the Court to grant the counselled person leave to be heard in respect of the determination pursuant to s 14G.  Reference is made to the observations of Gibbs J in Australian Conservation Foundation v The Commonwealth:^[19]

“The question whether a private person has standing in particular circumstances has been considered in many cases, which will be found discussed by Professor Heydon in Stein, Locus Standi, pp. 39-40, 4554 and in Whitmore and Aronson, Review of Administrative Action, pp. 330-337, 480. It is not necessary for me to consider the manner in which the principle which I have stated should be applied in circumstances which do not now arise, and it would not be profitable to do so, because, as Mason J said in Robinson v. Western Australian Museum (1977) 138 CLR, at pp 327-328 , the ‘cases are infinitely various and so much depends in a given case on the nature of the relief which is sought, for what is a sufficient interest in one case may be less than sufficient in another’”. 

Noting that, in that case, the question of standing was in respect of sufficient interest in enforcement of public right, in the nature of the protection of the environment.  And also to Right to Life Association (NSW) v Secretary Department of Human Services and Health,^[20] where the issue was whether the applicant was “aggrieved person” for the purposes of Administrative Decisions (Judicial Review) Act 1977 (Cth).  Despite that concern with the satisfaction that, albeit broadly expressed, statutory term, the submissions for the defendant seek to adopt a test identified in that case, being whether the person may have a complaint or grievance in the outcome, beyond that of an ordinary member of the public.  

18. [18]
    The defendant also, correctly, points out that the absence of a provision such as s 299A of the Criminal Procedure Act 1986 (NSW),^[21] such as to specifically provide for a more expansive right to be heard in respect of similar issues, as to detracting from rather than assisting the arguments put for the counselled person.^[22]
19. [19]
    Taking then the questions posed in TRKJ (at [54]), the defendant points to the specific provisions in s 14L (in providing for the ability of an individual to assert and maintain a person’s privilege in respect of PCC) and s 14H(3) (in allowing for the provision of a statement of harm), as appropriately providing for procedural fairness in respect of such individual interest.  Otherwise and in support of that legislative scheme, there is particular reference made to:

    1. (a)
       The observations in R v MFJ,^[23] as to the apparent policy considerations having regard to prosecutorial involvement in the importance of prosecutorial independence and the need to address a broad question as to balance of public interests, as being that which is ultimately addressed by s 14H; and
    2. (b)
       Similarly based observations in R v CDJ,^[24] which also draws attention to the inferior position of a counselled person and apparent dependence upon information sourced from the prosecution, in respect of attempting to address the issues of “substantial probative value” and availability of other documentation, pursuant to s 14H(1)(a) and (b).
20. [20]
    The prosecutorial position is supportive of the counselled person having standing, particularly in terms of being granted leave to be heard upon on a determination pursuant to s 14G of the Evidence Act.  But makes no submissions for or against any such grant of leave, in this case.
21. [21]
    In addition to making reference to the decisions of Australian Conservation Foundation v The Commonwealth and Right to Life Association (NSW) v Secretary, Department of Human Services and Health, reference is also made to Onus v Alcoa of Australia Ltd^[25] and Purcell v Venardos (No 2).^[26] In the latter case, reference to is made to the first two mentioned cases, in the context of leaving undecided, the “interesting question” as to whether the victims of alleged offences “had a sufficiently greater interest in the outcome of criminal proceedings” then “any other members of the community interested in the proper administration of the criminal law” as to provide standing for proceedings brought pursuant to s 20 and s 21 of the Judicial Review Act 1991.  Somewhat confrontationally, these authorities are referred to in the context of posing the question: “if the counselled person are (sic) unable to be heard, then who would be the contradictor?” 

22. [22]
    And in similar vein, there is reference to s 25 of the Human Rights Act 2019 (Qld), in acknowledgement of individual rights to privacy and reputation.  However and as correctly contended for the defendant, this provision has no real bearing in respect of the interpretation of a legislative scheme which is clearly calculated itself to protect against arbitrary access to PCC and to protect the privacy of counselled persons. And more particularly, does not assist in respect of determining the application of the common law principles as to the entitlement of an individual to be heard.^[27]

Discussion

23. [23]
    Two related difficulties may be immediately noted as arising out of the contentions:

    1. (a)
       first, in noting the inherent unacceptability and circularity of the proposition that the undoubted general power of this Court,^[28] to allow the counselled person to be heard should be influenced or determined by any proposed abrogation of what may be seen as the appropriate duty and responsibility of an acknowledged party to the proceedings; and
    2. (b)
       secondly, in identification of the extent to which a counselled person has any private interest or alternatively any special interest beyond that of any member of the public, in the determination of an application pursuant to s 14G.

24. [24]
    The first difficulty arises in the context of what may be noted as the fundamental nature of the prosecutorial role in the administration of criminal justice and as most recently noted by the High Court, in the context of the responsibility of calling witnesses and adduction of evidence, in Nguyen v The Queen,^[29] in terms of “the responsibility of ensuring that the Crown case is presented with fairness to the accused”.^[30] Earlier, in Libke v The Queen,^[31] the same observation is noted,^[32] in the context of further notation of the following as to the role of a prosecutor in a criminal trial:

“[71] …prosecuting counsel has a role that is bound by long-established duties and responsibilities.  Those duties and responsibilities are summarised when it is said that ‘[t]he duty of prosecuting counsel is not to obtain a conviction at all costs but to act as a minister of justice’.” (citations omitted) 

In another judgment in the same case, it was also observed that:

“[34]   The principles governing the conduct of a prosecutor are well settled.  They were restated by Deane J in Whitehorn v The Queen:

‘Prosecuting counsel in a criminal trial represents the State.  The accused, the court and the community are entitled to expect that, in performing his function of presenting the case against an accused, he will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused’s trial is a fair one.’ ….

In the same case, Dawson J said this:

‘No doubt all of these observations are merely aspects of the general obligation which is imposed upon a Crown Prosecutor to act fairly in the discharge of the function which he performs in a criminal trial.  That function is ultimately to assist in the attainment of justice between the Crown and the accused.  In this respect the Crown Prosecutor may have added responsibilities in comparison with other counsel but it does not mean that his is a detached or disinterested role in trial process.’”^[33] (citations omitted)

25. [25]
    It is in this sense that it must necessarily be understood that the prosecutorial role is in pursuance of what is alleged as an offence against the State or community, rather than as any agent in respect of any individual or private interest.  Private prosecution of an indictable offence by an individual may be permitted by leave,^[34] but rarely occurs and is a right which is, in any event, subject to being overridden by executive intervention.^[35] As observed by Holmes J, in dealing with such an application in Gilbert v Volkers and in refusing leave for a private prosecution having regard to an overwhelming risk of furthering a “perception of a personal context between applicant and respondent”:

“On a criminal trial, the prosecution should be, and should appear to be, conducted on behalf of society as a whole, without the distracting winds of personal indignation or outrage.”^[36]

26. [26]
    It is such an understanding and one borne of particular practical experience, which it may be seen in the observations of Judge Clare SC in R v MFJ:

[7] The crown prosecutor is instructed by the Director of Public Prosecutions. The Director of Public Prosecutions is the independent office created by parliament to prosecute alleged offences against the law of Queensland. In carrying out that function, the Director and his or her officers act on behalf of the Crown in right of the State of Queensland. A criminal trial is between the Crown and the accused person . The counselled person (usually the complainant) is not a party. The exception would be a private prosecution. A private prosecution cannot commence without leave of the Supreme Court. The present indictment was presented to the court by a crown prosecutor pursuant to s 590 of the Criminal Code Act 1899 (Qld). Therefore, this is not a private prosecution.

…

[10] While the counselled person would otherwise be a beneficiary of the privilege, there are important policy reasons why Parliament would not confer standing for the whole application. Prosecutorial independence is one of the pillars of our criminal justice system. The substantive application for leave is under s 14 H. It focuses on the relevance and weight of evidence and the defence case, as well as the balance of public interest. Assessments of that nature are an integral part of prosecuting. On the other hand, the counselled person is not best placed to make objective submissions on the broader public interest. Moreover, the counselled person is likely to be a key witness in the trial. A process which encouraged the complainant to participate in a forensic analysis of the whole case prior to testifying would be fraught with risk.”^[37] (citations omitted)

27. [27]
    On the other hand, it may be readily accepted that having been given the benefit of the statutory privilege attaching to PCC and in some instances, the right or power of waiver, the counselled person will have a particular and private interest in the maintenance of that privilege.
28. [28]
    However, the extent to which such personal or private interest is recognised in the legislative provisions may be perceived to be deliberately limited:

    1. (a)
       in the first instance and by s 14L, to determination of issues as to the existence or application of the privilege.  That is perfectly understandable, where it is the counselled person’s privilege.  It is less understandable as to why a “counsellor” is given, on the face of it, equivalent standing pursuant to s 14L.  However, this would allow for such a person to whom a subpoena is directed without leave being first obtained, to raise the effect of s 14F(a) in providing that without such leave, the counsellor cannot be so compelled, and any other issue which might otherwise be raised pursuant to rr 30 and 31 of the Criminal Practice Rules 1999; and

2. (b)
   in a second instance and pursuant to s 14H(3), to proffer evidence in the terms of a written or oral statement of harm. As noted in TRKJ,^[38] this is concerned with an ability to provide evidence, which may be regarded as an incident of but not the ambit of a right of audience and is only provided in terms that “the court may consider such evidence”.  Otherwise, it may be seen that the further provisions in s 14H(4) and (5) are concerned with the maintenance of confidentiality, or a privilege, such that such material is not to be disclosed to any party to the proceeding.

29. [29]
    Such limitation of express provision as to the involvement of the counselled person in the determination of an application pursuant to s 14G, must be seen in the context of understanding that:

    1. (a)
       the privilege created by s 14F is only for the purposes of proceedings “for the trial or sentencing of a person for an offence” and “relating to a domestic violence order under the Domestic and Family Violence Protection Act 2012”;

2. (b)
   has potential application at different stages and for different purposes, in respect of such proceedings.  In addition to the prohibition as to compulsive production of PCC to a relevant court, leave is required to overcome more general prohibitions upon, production to a court, adduction into evidence or use otherwise and disclosure, inspection or copying, otherwise, of PCC; 
3. (c)
   As reflected in s 14H(1)(c), the statutory assumption noted as a “public interest” is in necessity to:

   1. preserve the confidentiality of the communication; and
   2. to protect the counselled person from harm.

It may also be observed that such assumptions are noted and directed to the court, in the requirements of s 14H(2);^[39]

4. (d)
   But that ultimately the determination of any application for leave, pursuant to the s 14H criteria, involves determination of matters which are germane to the litigation which is the subject of the proceeding in which the application is made.  That is, in determination as to:

   1. substantial probative value (s 14H(1)(a));
   2. that other documents or evidence concerning the identified matters, are not available (s 14H(1)(b)); and
   3. in balancing the competing “public interests”, so that it is determined that: 

“the public interest in it 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.”

30. [30]
    It is to be noted that apart from anything which might fall within s 14H(2)(h), as another relevant matter, the only specifically identified matter of public interest in favour of admission of a communication in evidence, is that in s 14H(2)(g):

“The extent to which the communication is necessary to enable the accused person to make a full defence”.

Whilst the question which is to be considered pursuant to s 14H might equally arise in respect of proceedings relating to a domestic violence order, this tends to acknowledge a particular sensitivity of application to criminal proceedings. 

31. [31]
    The position is the same whether it be proceedings relating to a domestic violence order or criminal proceedings: the effect is a complete restriction on access to and use of PCC, with only very limited exception.  Whilst an essential distinction in proceedings relating to a domestic violence order is that the counselled person may be a party to the proceeding, the restriction also applies, subject to any permitted waiver of privilege, to the counselled person and in proceedings brought by a prosecutor in the right of the state, to that prosecutor.
32. [32]
    Here the application for leave to subpoena PCC arises in the context of and is made in proceedings brought by a prosecutor representing the state and therefore the public interest in appropriate prosecution of the allegations made against the defendant or the accused person. Moreover and as observed in R v CDJ,^[40] the issues which arise under s 14H are of a kind which such a prosecutor is primarily equipped to address and might regularly be called upon to do so in other contexts. This includes any issue arising under s 14H(1)(c), which would be necessarily influenced by the determinations made pursuant to s 14H(1)(a) and (b) and the extent to which such determinations influence the extent of the “public interest in admitting the communication into evidence”, and as to which, a counselled person could only be expected to be responsive on the basis of materials or information sourced from the prosecutor.
33. [33]
    On the other hand, it may be seen that the privilege as to which the counselled person may be accepted to have a personal interest in maintaining, is of a limited kind, in that it only applies:

    1. (a)
       in the context of particular proceedings; and
    2. (b)
       subject to the leave of a court, obtained by having regard to considerations extending well beyond any personal interest or right of a counselled person and ultimately in a determination of a substantial outweighing of a “public interest”, which in objective terms requires acknowledgment of the relevant personal interests or rights of the counselled person, by a competing “public interest” in admission of the communication into evidence.

Moreover, it must be observed that subject to the ability of the counselled person to subjectively inform the Court as to “the harm the person is likely to suffer if the application is granted”, particular considerations which may be reflective of a counselled person’s interest in maintenance of the privilege are mandated to be taken into account, pursuant to s 14H(2)(a) to (f). 

34. [34]
    Therefore, there is no discernible purpose in these provisions, or recognition of the personal interests of the counselled person, such as to support any expectation of broadly based involvement in a determination of an application brought pursuant to s 14G having regard to the s 14H criteria.  Moreover and having regard to the broad statement of principle drawn from Annetts v McCann,^[41] the limited expressly recognised aspects of involvement, would tend to be an indication against such a conclusion. Also and in the application of the principle therein expressed, it is of importance to note that it was expressed in support of a conclusion that in a coronial inquest into the death of their son, the parents of the deceased should be heard as to:

“… matters which are identified as a possible source of adverse findings concerning their interests, they have no right to make submissions on the general subject matter of the inquest.”^[42]

Accordingly, these interests were identified as “matters which may be the subject of adverse findings against them personally or against the deceased”,^[43] in contradistinction to the general subject matter of the coronial inquiry, which was described as involving the “public interest”.^[44]

35. [35]
    For these reasons and as noted at the outset of this discussion, it is of particular importance to note  the extent to which the criteria prescribed by s 14H(1) actually involve any assessment of the personal interests of a counselled person, except to the extent that particular subjective considerations, as to the likelihood of harm,  may be considered pursuant to s 14H(3) in support of the public interest referred to in s 14H(1)(c). Otherwise, it is apparent that there is the mandatory requirement for the Court to have regard to considerations that assume and are patently weighted in favour of informing the public interest in preserving confidentiality of the communication and protecting the counselled person from harm, as to be considered pursuant to s 14H(1)(c). Those criteria, particularly as expressed in s 14H(2)(a)-(d) and (f), are expressed as statements of general conclusion and as objective considerations. They are not amenable to being gainsaid or given differing weight, in the circumstances of individual cases.  Moreover, all of the s 14H(2) considerations are expressed to be taken into account in deciding the balance to be struck in s14H(1)(c), in terms of the substantial outweighing of those considerations, as expressed to be struck by reference to consideration of another public interest, which as has been noted, will necessarily be informed by the conclusions reached as to the criteria in s 14H(1)(a) and (b) and in terms of s 14H(2)(g), thereby informing “ the extent to which the communication is necessary to enable the accused person to make a full defence”. 

36. [36]
    Therefore and except as those objective criteria may be further informed by the subjective considerations which may be introduced pursuant to s 14H(3), the determination of an application pursuant to s 14G is not ultimately directed at any particular assessment of the personal interests of the counselled person. That includes any issue which may arise in a given application pursuant to s 14H(2)(e), as the identification of any discriminatory belief or basis for what is sought, may be expected to be identifiable on an objective rather than subjective basis.  The s14H(2) considerations may be seen as legislatively and relevantly stated so as to support a balance which favours these objectively stated interests favouring a counselled person, subject to an applicant substantially shifting that pre-determined balance. 
37. [37]
    Approached another way, when it is understood that the privilege attaching to PCC only exists in the absence of leave which may be granted pursuant to s 14G, it may be seen that the determination of that question has the effect of establishing rather than destroying, defeating or prejudicing a counselled person’s rights, interests or legitimate expectations, but only upon a basis which is concerned with the assessment of broad matters of public rather than private interests. Accordingly and to the qualified extent to which there is private interest or expectation involved in that determination, there may be discerned, in the expressly limited recognised involvement of the counselled person pursuant to s 14H(3) and the context of the substantive proceedings, a necessary intendment to exclude any allowance of a right of the counselled person to be broadly heard. 
38. [38]
    For the same reasons, it must be determined that except in respect of informing the Court as to such likelihood of harm, it is not discernible that the issues to be determined pursuant to s 14H(1), in deciding an application pursuant to s 14G of the Evidence Act, involves any sufficient personal interest of a counselled person or any interest in the outcome beyond that of any member of the public, such as to warrant or allow for a general grant of leave to be heard in respect of that decision.
39. [39]
    However and in respect of the noted exception, a grant of leave to be heard in informing the Court as to the particular likelihood of harm in granting an application, may be seen as permissible and appropriate in a given case.  Whilst s 14H(3) – (5) allow for and regulate the provision of such evidence, those provisions may be seen as being primarily directed at preservation of confidentiality, or privilege, in respect of non-disclosure of such evidence to the parties to the proceeding.  Those provisions are concerned with the private or personal interests of the counselled person and are clearly not exhaustive as to the issues which may arise in that respect.  For instance, in relation to:

    1. (a)
       whether the Court is to consider such a statement;
    2. (b)
       whether what is proffered is appropriately and only addressed to “outlining the harm the person is likely to suffer if the application is granted”; and
    3. (c)
       the process by which an oral statement of a counselled person is made.

Each of these considerations might be appropriately facilitated by the legal representation, which is understood to be generally available to counselled persons, and an appropriate grant of leave to be heard.  Consistently with s 14H(5), in particular, and by necessary implication, it would be envisaged that this would be a right to be heard in camera and without the involvement of, or disclosure to, the parties to the proceeding.

Conclusion

40. [40]
    It should be observed that these conclusions may be seen to be, to some degree, not without contestability. In the first instance, that may be seen as a product of what has been previously observed as the very difficult task of interpreting these legislative provisions, both as expressed and as intrusion into the usual and fundamental principles underlying the processes of the criminal law.  However and for the reasons set out and further distilled below, it is the preferable or most appropriate view, in the circumstances.

41. [41]
    It may be observed that the contestability of these conclusions will necessarily be informed by the weight which might be given to the broad expression of the identified personal interest of the counselled person in maintaining the privilege accorded to PCC.  However, not only is that a broadly expressed concept, it also lacks specificity of expression as to the occasions when such a personal interest may be justiciable.
42. [42]
    Here the particular context is the conduct of criminal prosecutions, where it has long been recognised that such proceedings are best and usually, if not in a practical sense invariably, pursued in the interests of the State.  That is, in seeking retribution for wrongs amounting to an offence, including those against individuals, in the retribution of the public interest in the conviction and punishment of offenders, rather than in allowance of long outdated methods of personally pursued retribution and punishment.  Whatever might be framed in broad terms about the undoubted personal interest of a counselled person in the outcome of such proceedings, including the maintenance of that person’s complaint, it is inconceivable that such a personal interest could lead to recognition of any right to be heard as to the admissibility or admission of evidence in such a proceeding.
43. [43]
    Notably, the privilege and personal interest in respect of PCC, is granted only in relation to criminal proceedings and those relating to domestic violence orders and is not recognisable in circumstances of any civil litigation in respect of a wrong or otherwise, as between a counselled person and a defendant.  Whatever may be seen as any relevant distinction in proceedings relating to a domestic violence order, where the counselled person is a party,^[45] the necessarily critical context for these conclusions is the application of them to the processes of the criminal law which are engaged before this Court, at the behest of the prosecution, in the public interest.

44. [44]
    It should be kept in mind that whilst the more particular context here is at an early stage of such a process and as to leave to subpoena PCC, section 14F and therefore section 14G, have potential application at subsequent junctures and where the PCC may be known or in the possession of a defendant.^[46]  Whilst the procedures under s 14G are necessarily engaged (as a potentially significant interruption of the progress of proceedings, if not raised by pre-trial application under s 590AA of the Criminal Code Act 1899 (Qld)), it is at least difficult to see why this is not properly and most appropriately a matter for response by the prosecutor rather than the counselled person.
45. [45]
    In my view, these considerations are in further confirmation of an understanding of the effect of the legislative scheme, in specifically:

    1. (a)
       allowing a limited involvement of the counselled person in support of provision of any relevant subjective material, in support of the substantial assumptions made in favour of the counselled person’s interests, in an objective sense; and
    2. (b)
       providing for an ultimate determination as to whether the privilege applies (if the preconditions in s 14G(1)(a) and (b) are satisfied by the defendant) upon a balancing exercise not only substantially biased in favour of the interests of the counselled person (as a matter of defined public interest) but determined entirely according to the assessment of competing public interests.

And in such an understanding, may be found not just a preferable view of absence of any sufficient personal interest of the counselled person beyond that of any member of the public, but also a necessary implication that to the extent that there may remain any personal interest, right or legitimate expectation in the outcome, there is a necessary intendment of exclusion of a right to be heard as to that determination. 

46. [46]
    Accordingly, it is not appropriate to allow the application of the counselled person for leave to be heard in the determination of the defendant’s application pursuant to s 14G, upon the broad basis upon which that application has been made.  Subject to clarification that the application is pressed upon the more limited basis identified above as permissible, and whether the defendant’s objection extends to the granting of such limited leave, an appropriate order may be made.