R v WTS[2022] QDCPR 57

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The defendant is indicted before the Court, at Gympie, in respect of one count of grooming a child under 16, two counts of common assault, five counts of indecent treatment of a child under 16, two counts of rape and a count of indecent treatment of a child under 16 under care.  Those offences are alleged to have occurred in various particularised date periods, between 24 February 2019 and 4 November 2019.  
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 November 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. “1.Subpoena ‘protected counselling communication’ records and information; and
2. 2.Produce to a court, adduce evidence of or otherwise use ‘protected counselling communication’; and
3. 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” (“PCC”), 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”.

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.
5. [5]
   This issue arose contemporaneously with similar issues in another matter indicted at Gympie and which is the subject of the decision in R v CMA (“CMA”).^[2] Although heard separately, there is considerable overlap in respect of the contentions raised and particularly those made by the same counsel for each of the defendant and prosecution. Accordingly, these reasons will adopt rather than repeat commonly applicable passages in the CMA reasons.
6. [6]
   Therefore and in the first instance, the observations made under the heading: “Contextual considerations” in CMA,^[3] are adopted.

The contentions

7. [7]
   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,^[4] 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”).^[5] In contrast to the situation in CMA, the issue was not raised as an application by the counselled person but arose on the objection taken for the defendant to an expectation that the counselled person would be so heard.
8. [8]
   Although it was originally foreshadowed that the counselled person would argue to support a right of audience, as a party to the proceeding before the Court, in the submissions ultimately made, the position was pressed only as to appearance by leave of the Court.  Those submissions were made on two alternative bases:

1. (a)
   first, on the basis of the counselled person holding “a private right, a privilege created by statute, and the court is being asked to exercise its power (sic) remove that right or privilege”^[6] and that “the court should not exercise its power in the absence of representation for the person whose right is being diminished or removed”^[7]; and
2. (b)
   Alternatively, to allow the counselled person, through legal representation, to be heard as amicus curiae.^[8]

9. [9]
   In support of the primary contention, particular reliance is placed upon the common law principles as to recognition of sufficient interest in the outcome of proceedings to warrant a grant of leave to be heard, such as discussed in Australian Conservation Foundation Inc v The Commonwealth^[9] and Right to Life Association (NSW) v Secretary Department of Human Services & Health.^[10] Ultimately, the contention was particularly pressed in relation to being heard in respect of the question arising under s 14H(1)(c), having regard to interest in respect of considerations as to privacy and confidentiality, in addition to avoidance of harm.^[11]
10. [10]
    In further support of the primary contention, the counselled person places emphasis upon the requirements of s 14H(1)(c) and 14H(3) to (5) and s 14N(1), in recognition of an underlying policy of seeking to protect the counselled person from harm which may flow from abrogation of the privilege attaching to PCC.  It is contended that, having regard to the private or personal right embodied in this statutorily provided privilege, a purposive approach to these provisions supports a conclusion that the counselled person might be granted leave to be heard and so that the court is properly informed in determination of an application pursuant to s 14G of the Evidence Act. Support for that contention is sought to be drawn from the process of notification of the counselled person embodied in s 14G, and that there are specific provisions such as s 14I(4) and s  14K(4) which clarify that the director is not required to give the counselled person legal advice.  It is also particularly noted that s 14K(1)(b)(2) places an obligation on a court to “satisfy itself” that a counselled person is aware of the relevant legislative provisions and has had an opportunity to seek legal advice as to any grounds that person may have:

“For objecting to the production of a document, or the adducing of evidence, that is a protected counselling communication.”

11. [11]
    An additional line of argument takes, as its premise, notation of an existing practice of the Director of Public Prosecutions, to take a “neutral position” upon such applications.^[12]  From that premise, is then developed an alternative proposition that the counselled person be heard as amicus curiae, on the footing described in Levy v Victoria;^[13]

“The footing on which an amicus curiae is heard is that that person is willing to offer the Court a submission on law or relevant fact which will assist the Court in a way in which the Court would not otherwise have been assisted.”

12. [12]
    The contentions for each of the defendant and the prosecution were in precisely the same terms as those made in CMA.^[14]

Discussion

13. [13]
    All of what is included under the heading “Discussion” in CMA is referable to this matter (as is the further elaboration as to the conclusion reached under the heading “Conclusion”) and it is only necessary to elaborate as far as any additional contention or matter of emphasis is to be discerned in the submissions made for this counselled person.
14. [14]
    Upon proper analysis, the provisions as to notification of the counselled persons as to any applications brought pursuant to s 14G and those in s 14I(4) and s 14K(4), are consistent with the specific statutory recognition of the personal interests of a counselled person in maintaining a claim to privilege (in the sense that a particular communication is within the definition of PCC) and in informing the Court as to any particular subjective considerations as to the likely harm to that counselled person, if an application pursuant to s 14G were to be allowed. Moreover, there is nothing which allows for any discernment of intention to shift responsibility for response to such an application from an acknowledged party in the proceedings in which it is made and to which such application essentially relates.

15. [15]
    Notably and notwithstanding the submission as to the prospect of a counselled person performing a role as amicus curiae, it is conceded, in other submissions, that usually a counselled person will have no interest in the antecedent considerations in s 14H(1) and what is particularly pressed is recognition of a sufficient interest in the issue to be determined pursuant to s 14H(1)(c), including what is allowed pursuant to s 14H(3).^[15]
16. [16]
    It may be noted that for the counselled person, the submissions sought to place some emphasis upon the contention of such person’s interest in terms of confidentiality and privacy and therefore extending beyond an interest in avoidance of harm. For the reasons expressed in CMA,^[16] to the extent to which such considerations are entirely severable from that of avoidance of harm, they are expressly stated, in objective and conclusive terms, as mandatory considerations in s 14H(2) of the Evidence Act.
17. [17]
    It can also immediately be noted that there is no demonstrated basis for the contention as to allowing a role as amicus curiae. It should not be assumed that the prosecution is not in a position to assist the Court in respect of the determination required under s 14G, nor that that there should be any expectation but that a prosecutor will do so, as the natural and appropriate respondent to such an application. 
18. [18]
    The current position, in the early stages of the application of this legislation, appears to be particularly directed at applications for leave to subpoena PCC. However and as has been previously noted, questions as to the use and admission into evidence of PCC, may also arise at a later juncture in the criminal processes. It is, in my view, axiomatic that the involvement of the prosecutor, at all such junctures, is not only appropriate but necessary and notwithstanding that it may be recognised that it will be the primary obligation of the applicant for leave under s 14G, to persuade the Court that the criteria set out in s 14H are satisfied and therefore to provide sufficient materials in order to allow for such conclusion. 

Conclusion

15. [19]
    Accordingly and with the same observations as to preference of view, as noted in the conclusion in CMA,^[17] it is appropriate to allow the objection of the defendant to the counselled person being allowed 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 sought.  Subject to clarification that the counselled person presses for leave upon the more limited basis identified as permissible and whether the defendant’s objection extends to the granting of such limited leave, an appropriate order may be made.