R v WJA[2023] QDCPR 102

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   On 22 March 2023, the defendant (“applicant”) was indicted in respect of three charges of rape, alleged to have been committed on 28 May 2022, by the then 33-year-old defendant in respect of the then 15-year-old complainant.
2. [2]
   By application filed 24 August 2023, the applicant seeks orders in relation to records held, in respect of the complainant, by “Childrens Health Queensland Hospital and Health Service” and “Sunshine Coast Hospital and Health Service”, granting leave to:

“a. Subpoena ‘protected counselling communications’;

b. Produce to a Court, adduce evidence of or otherwise use ‘protected counselling communications’; and

c. Otherwise disclose, inspect or copy ‘protected counselling communications’.” 

 Accordingly, the applicant seeks leave to overcome all of the restrictions otherwise placed pursuant to s 14F of the Evidence Act 1977, upon material within the definition of “protected counselling communication” (‘PCC’) in s 14A of that Act.

3. [3]
   It is accepted that there has been compliance with the service requirements in s 14G and the counselled person appeared by legal representatives in this application.        
4. [4]
   As this is an application brought within and in the context of the proceeding against the defendant on the indictment, it is convenient to first set out an overview of the prosecution case in respect of the indicted allegations, as that was disclosed in the materials placed before the Court.
5. [5]
   Leaving aside any reference to available evidence as to an issue as to whether or not the applicant knew the complainant was aged 15, as opposed to believing on reasonable grounds that she was 16 years old or older, which appears to be relevant only to the prospect of an alternative verdict of unlawful carnal knowledge or penile intercourse and as may be permitted by s 578 of the Criminal Code, the prosecution case will be essentially as follows:^[1]

   1. On 8 October 2021 the applicant befriended the complainant on Facebook.  He continued to send messages and to telephone her for several months, without her replying.
   2. On 25 May 2022 the applicant messaged the complainant to say:

“I could give you a lot of things if you want to talk and hang out sometime”.

The complainant’s reply was:

“What you got for me”.

3. In the early hours of 28 May 2022 there were messages exchanged between the applicant and the complainant as to her coming over with him paying for her taxi and negotiations as to him paying her $100.  The clear implication was that arrangements were made for sexual activity.  The applicant had asked for a video of the complainant in bra and skirt and asserted that, “I really really want you.”  The complainant had sought a photograph of the applicant’s residence and of himself.  His reply included the assertion, “A big two-storey house here by myself waiting for you to come over and have some drinks and fun”.  In response to the photographs, the complainant replied: “Yeah you are sweet as.” And also asked: “Will you take care of me tonight?”.
4. At approximately 7:00 pm a taxi arranged by the applicant collected the complainant from her home and she applied makeup in the taxi.  On arrival at the applicant’s unit, the applicant was waiting for her and when the complainant asked the driver whether he could pick her up later on, the applicant insisted that he drop her home the next day.  The complainant did not say anything.  The applicant paid the taxi driver and he and the complainant walked to his unit.
5. At the applicant’s property they went first to an open garden shed that had been converted to a bar type area.  Music was put on; the complainant was provided with a smoke and with cider and wine.  Although the complainant describes being uncomfortable with some things that were said and done, she went into the applicant’s unit, at his invitation, and describes his personality changing and he became more controlling when they entered his bedroom upstairs.
6. Her account is that as the applicant kissed her face and neck she said, “We shouldn’t do that.”  As the applicant removed her skirt and pulled her underwear down and inserted his fingers into her vagina, she told him to stop and said, “Let’s not do that and you need to stop that”.  However, he continued and that is the allegation constituting Count 1.
7. The complainant describes the applicant gripping her neck with his right hand so that she felt like she was choking and could not really breathe.  He said he wanted to do things to her and tried to push her off the bed.  She stood up but he grabbed her and started to push and shake her and she told the applicant that she wanted a break and to stop.
8. The applicant licked the complainant’s vagina and she told him “no” and “let’s just not do that”.  She moved away from him but he gripped her arms and pulled her head towards his penis and she unwillingly performed oral sex on him.  After a short time she stopped and pushed him away.  He wanted her to continue but she said, “No I don’t like doing that.”  What is described as her unwilling act of performing oral sex on him is the subject of Count 2.
9. The applicant is described as becoming rougher with the complainant, grabbing her legs and quickly getting on top of her and inserting his penis into her vagina.  The complainant told him to stop and tried to move to free herself but the applicant continued for a couple of minutes until she was able to move away from him and stopped him further penetrating her.  That is the subject of Count 3 and the complainant further describes that the applicant proceeded to twist her body into another position as she was resisting him and sought to insert his penis into her bottom, without success.
10. The complainant describes eventually being able to convince the applicant that she had friends in the area so that she could leave.  Shortly after doing so, the complainant telephoned police.  However, she lied to police when they arrived, telling them that she was seeing a friend, had arrived by train and that a man approached her and raped her.
11. As the complainant was in an ambulance, the applicant approached the police and said he was looking for his friend, naming the complainant by her first name, explaining that he had met her on a dating website.  He was arrested and transferred to the watchhouse but later released without charge, after his mobile telephone was seized.  A search of his residence resulted in the location of a used condom with “the complainant’s DNA on it”.
12. At the Sunshine Coast University Hospital, the complainant underwent a sexual assault examination and was found to have the following injuries:
    1. (i)
       an approximately 3mm laceration in the posterior fourchette identified by the examining nurse as capable of being caused by overstretching of the skin during sexual intercourse;
    2. (ii)
       some areas of marking or bruising inferior to the jawline adjacent to the left side of the larynx and under her bra line on the left and right side.
13. A doctor in examining the complainant at the hospital noted that she appeared “distraught” and it is noted that the complainant provided an account to a nurse of non-consensual sex, involving digital and penile penetration of her vagina and her being forced to perform oral sex on the applicant;
14. The applicant was arrested and charged on 4 June 2022, after he declined to participate in an interview.

The application

6. [6]
   This application has been precipitated upon the listed hearing pursuant to s 21AK of the Evidence Act to pre-record the complainant’s evidence, not proceeding on 28 July 2023, due to the complainant being unwell and unable to attend Court, and in the circumstances of the disclosed revelation of the complainant’s mother informing the prosecution, on 27 July 2023, that the complainant had been under the care of the Children and Youth Mental Health Service for some 12 months.  Also, in conjunction with the preparation for that hearing, a QPrime Person Report relating to the complainant was disclosed to the defence.  Although, for the applicant, it is contended that the entry should be considered in the context of the balance of the report being indicative of various police interactions with the complainant. Some particular attention is drawn to an entry, dated 8 July 2021, indicating that a “street check” was performed in respect of the complainant on that day.  The entry indicates police attention to an incident which had occurred involving the complainant and her mother at or near a park at Golden Beach, Caloundra.  Relevantly, the entry is as follows:

“Patrols of esplanade located the mother outside 36 who advised [B] took off up the street, TUW [B] emotionally upset stating she just wants a test (pregnancy test) and it was taking too long.  Suffers bi‑polar, anxiety and becomes violent towards mother when she doesn’t get her own way.  Currently resides with her father partner.  QAS attended.  [B] clearly has mental health issues …”

7. [7]
   Necessarily and in the first instance, this application is for leave to subpoena the records so that they are brought within the control of the Court. That is because at this stage the applicant does not have access to any PCC which is sought to be used in connection with this proceeding and in particular, by being adduced in evidence. Accordingly, the application must necessarily proceed upon what may be established as being expected to be found in the records and thereby in satisfaction of the test for granting such leave, as prescribed in s 14H, as follows:

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.  preserving the confidentiality of the communication; and

2.  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.  the need to encourage victims of sexual assault offences to seek counselling;

2.  that the effectiveness of counselling is likely to be dependent on maintaining the confidentiality of the counselling relationship;

3.  the public interest in ensuring victims of sexual assault offences receive effective counselling;

4.  that disclosure of the protected counselling communication is likely to damage the relationship between the counsellor and the counselled person;

5.  whether disclosure of the communication is sought on the basis of a discriminatory belief or bias;

6.  that the disclosure of the communication is likely to infringe a reasonable expectation of privacy;

7.  the extent to which the communication is necessary to enable the accused person to make a full defence;

8.  any other matter the court considers relevant.^[2]

8. [8]
   In terms of addressing these criteria, the submissions for the applicant firstly address the issue of substantial probative value in terms of arguing that the records which are sought “will have substantial probative value for the following reasons:

a. To understand the nature of the counselled person’s mental health condition (being bipolar disorder) and how the symptomology of her illness will affect her reliability as a witness;

b. To understand the nature and extent of the counselled person’s use of dangerous drugs, both prior to and at the time of the offending and how such use affected her mental health conditions; and

c. To determine whether the counselled person’s mental health condition is such that a direction of the kind discussed in Bromley v The Queen could be sought at the trial.”^[3]

It is further contended that:

“In order to determine whether such a direction should be given at the trial, it will be necessary to understand the specific presentation of the counselled person’s mental health concerns.  This would be relevant both in relation to her diagnosis with bipolar disorder and also her use of dangerous drugs, which may or may not have exacerbated certain symptoms.”^[4]

9. [9]
   It is further contended that there “is no other evidence available regarding the counselled person’s diagnosis with bipolar disorder, its symptomology or its interaction with her use of dangerous drugs”.  Further, and in respect of the criterion relating to public interest considerations, the nature of the test in requiring that the public interest, in admitting the communication, must substantially outweigh the public interest in preserving confidentiality and protecting the counselled person from harm, is noted. But it is also noted that the purpose of the legislation is to balance the competing public interests of ensuring the fair trial of an accused while respecting the privacy of counselling communications. Reference is also made to instances such as R v DO,^[5] to demonstrate that upon inspection of such material, it has been found “that it was within the public interest to disclose certain records found to be substantially probative.”  It is then contended that:

“Without knowing the content of the records, it is submitted that considering the nature of the case against the applicant and the counselled person’s specific diagnosis, that the public interest weighs in favour of these specific records being made available to the applicant for use at trial. 

Although and in conclusion it is submitted only that:

“…the requirements in s 14H of the Act have been met to allow a subpoena to issue … so the Court may inspect the records to further consider whether the requirements of s 14H of the Act are met in relation to use of any particular record or part thereof.”

10. [10]
    Reference to the decision in Bromley is instructive in understanding that the direction approved in the judgment of Gibbs CJ (as was the subject of express agreement by Mason, Wilson and Dawson JJ), in terms of a warning as to the potential unreliability of an important prosecution witness, was identified as warranted:

“If it appears that a witness whose evidence is important has some mental disability which may affect his or her capacity to give reliable evidence, common sense clearly dictates that the jury should be given a warning, appropriate to the circumstances of the case, of the possible danger of basing a conviction on the testimony of that witness unless it is confirmed by other evidence.  The warning should be clear and, in a case in which a lay juror might not understand why the evidence of the witness was potentially unreliable, it should be explained to the jury why that is so.  There is no particular formula that must be used; the words used must depend on the circumstances of the case.”^[6]

11. [11]
    In Bromley, such circumstances arose not from any expert evidence as to any mental disability or capacity of the witness to give reliable evidence but upon it being identified, in evidence, that the witness “was a schizophrenic and that on the night in question, at a time after the alleged murder, he had an episode of that illness and was admitted to a mental hospital”.^[7]  In the judgment of Gibbs CJ, the  danger to which such a warning would be directed, was identified as arising because:

“In the present case the danger that Carter might be an unreliable witness must have been apparent to the jury after particulars of the effect of his schizophrenia had been elicited in cross-examination;  e.g., he said that he thought he had seen the devil.”^[8]

However, the conclusion of the whole court was that the direction given by the trial judge was appropriate to meet the identified need for a warning.  In the other judgment delivered in the case and in agreeing with the result, Brennan J made the following observations:

“The reasons why a person suffering from a mental disorder might be led to give untruthful evidence depend, I suppose, on the nature and severity of the mental disorder.  The effects of various kinds and degrees of mental disorders on a witness’s capacity to observe, to recollect and to express accurately the matters he is to depose to and on his willingness to give truthful evidence are, I imagine, quite diverse.^[9]

….

If the mental disorder is quite trivial and transient, it may be quite irrelevant to the credit which might properly be given to the witness’s evidence.  And if the nature, severity and significance of the witness’s mental disorder is deposed to by persons qualified to do so, that may bring home to the jury more vividly and more authoritatively than a judicial warning on the danger of acting upon the witness’s evidence without corroboration.^[10]

….

Perhaps no more can be said than this:  when the danger in acting upon the evidence is real and substantial and when the conduct of the trial and evidence as to the witness’s mental disorder is such that the jury may not have fully perceived all the jury’s attention may have been diverted from the danger, a warning should be given.  This was such a case.

There was no medical evidence as to the nature, severity and significance of Carter’s mental disorder, yet it seems that he suffered some delusions on the night of the crime and some of his evidence was clearly inaccurate.  In the absence of expert evidence, the jury might have given too much emphasis to his appearance in the witness-box without having regard to the possible effect of his condition in his capacity to observe and recollect.  But his Honour gave the jury a warning, directing their attention precisely to the danger of acting on Carter’s evidence where it was unsupported by other evidence.  No more was needed.”^[11]

12. [12]
    These observations serve to explain and underscore how evidence as to the mental disability of a witness and more particularly, the effects of any such condition, may be relevant to the assessment of the reliability of a witness’s evidence.  Whilst matters relating to the credibility of prosecution witnesses is a matter for prosecution consideration,^[12] such issues necessarily arise or are ventilated, at trial, in cross-examination.^[13]
13. [13]
    The prosecution position on this application does not put in issue the potential relevance of the type of material which the applicant seeks to obtain and use, but was ultimately expressed as follows:

1. “38.
   To the extent that the records of CYMHS and Maroochydore Community Health speak to the complainant’s medical conditions and/or drug use, it is clear how they may be relevant to the complainant’s reliability; however, those records are unlikely to amount to protected counselling communications, rather general medical records.
2. 39.
   It is difficult to see how any protected counselling communications in those records would pass the test outlined in s 14H of the Evidence Act 1977 (Qld).  There is no evidence of the content of those records and whether they have any probative value.  It is entirely speculative.”

The final contention in paragraph 38 of that extract, may not necessarily be correct, at least in respect of some recordings of the complainant’s descriptions of the effects of any mental disability.  The further contentions in paragraph 39 of that passage were also effectively pressed for the counselled person.

14. [14]
    The submissions for the counselled person proceeded upon the basis that s 14M was not enlivened, so as to warrant the inspection and consideration of any document by the Court, so as to determine whether they are PCC.^[14]  Noting that the application is specifically to permit the subpoenaing of PCC from both entities, it was submitted:

1. “29.
   The mere fact that some non-PCC documentation may also be received in response to the subpoena could not be sufficient to compel the Court to consider all the material when it is inevitable that PCC documents will be received.
2. 30.
   Such a course is submitted to be contrary to the purpose of the legislation and would, perversely, incentivise the issuing of unduly broad subpoenas as a way of avoiding the need to satisfy the section 14H considerations.
3. 31.
   If the applicant wishes to peruse non-counselling records from either source that can be done without order of the court.”

In that context, and as to the application of the criteria to be applied pursuant to s 14H, for the grant of any leave to do that, it was contended that quite apart from the inability of the material relied upon to permit the Court to be satisfied that the public interest in admitting any such communication into evidence substantially outweighed the public interest in preserving confidentiality and protection of the counselled person from harm, the submission was that the fundamental difficulty arose at the first hurdle and as to whether the material placed before the Court enabled any conclusion that the material sought will have substantial probative value.

15. [15]
    In that respect and in reference to the specific submissions made for the applicant (as noted in paragraph [8], above), it is contended (in the first instance in reference to the submissions in subparagraph (a), above):

1. “42.
   Within this submission are two assumptions which lack a proper evidentiary base.  Firstly that the counselled person has or has been diagnosed with bipolar disorder.  The only evidence of this comes from a brief QPrime entry authored (presumably) by uniformed police who took up with her on that day.
2. 43.
   It is entirely unknown the basis for this assertion by the police, who clearly are not qualified to make such a judgement themselves.  Even if came from her mother, which seems the likely source, it is not known whether this is a lay impression from her own experience or her relaying a professional opinion.
3. 44.
   The second assumption is that, if the counselled person has bipolar disorder, or any other diagnosed condition, such a condition will affect her reliability as a witness.
4. 45.
   The submissions at paragraph 31.b. are similarly based on assumption, being that the counselled records will have any information at all regarding drug use by the counselled person, and further that drug use will have impacted on her mental health condition in a way that has relevance to this matter.
5. 46.
   Finally, the submissions at paragraph 31.c. are, respectfully, putting the cart before the horse.  The possible need for a Bromley direction does not imbue the records with substantial probative value; instead if the records had substantial probative value than there may be need for a Bromley direction.”

16. [16]
    As was observed in R v TJ,^[15] when dealing with an application for leave to subpoena protected counselling communications and in addressing the question as to whether the PCC sought will, by itself or having regard to other documents or evidence produced or adduced by the applicant, have substantial probative value, involves an assessment of what is demonstrated as expected to be found in the PCC.  Unfortunately and as is all too frequently encountered in applications of this type and as is the essence of the submissions correctly made by the counselled person here, that test is not capable of being satisfied by a speculative approach of asserting that there is the possibility of some material being found which, if found, might or even would have substantial probative value.^[16]

Further considerations

17. [17]
    When confronted with this reality and the blunt indication in the submissions for the counselled person, that it remained open to the applicant to seek to gain any benefit which might accrue from otherwise seeking to subpoena the records without the inclusion of any PCC, the response was to explain that “the application is for leave to subpoena documents that could be protected counselling communications”^[17] and that:

“it’s really expected that there will be some records returned from those hospitals that don’t meet the definition and may be diagnostic in nature, but it’s difficult to – from reviewing records of that nature in the past, they’re not easy to have just taken out the protected aspects of that material, so it may be that parts are and parts aren’t, even the non-protected parts could be significant in our case as well.”^[18]

This was also addressed in the context of the practice direction requiring this application because it is expressed to apply “where it is likely protected counselling communications as defined in s 14A of the Evidence Act 1977 will be contained in documents intended to be obtained by subpoena”.^[19]  However, that it is not necessarily a direction that precludes what is indicated or suggested by the counselled person, as the practice direction is only directed at the application of the provisions of the Evidence Act as they relate to PCC. 

18. [18]
    Indeed, it is to be noted that although and understandably, in the context of this explanation of the applicant’s approach, no issue has been raised as to the notification of this application being effectively given to the holder of the documents sought, as compliance with the obligation in s 14G(2)(b), to give notification of the application to “the counsellor”. It may well be that, having regard to the definitions of “counsel” and “counsellor” in s 14A, this is not what is expected by s14G(2)(b), or by s 14G(3)(b), and as potentially engaging a right of appearance of “the counsellor … to whom the communication relates”, pursuant to s 14L.^[20] These considerations are further complicated by understanding the effect of s 14A(4), in extension of the concept of “protected counselling communication”, as defined in s 14A(1), as follows:

“(1) A protected counselling communication 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.

…..

4.  A reference in this division to a protected counselling communication includes a reference to—

1.  a document to the extent it contains a protected counselling communication; or

2.  evidence to the extent it discloses a protected counselling communication.”

19. [19]
    In that further context and the expression of a tentative view for the counselled person of a more expansive potentiality of application of s 14A(4) than that implicit in the above noted observations for both the applicant and the prosecution, the submissions on the hearing of this application turned to the prospective engagement of s 14M, in order to determine whether any particular document(s) sought by the applicant is or are PCC. And more particularly whether in a pragmatic sense that was where this application was likely to be headed and as to whether any such eventuality could be pragmatically managed in this application and with the benefit of the existing engagement of the counselled person’s legal representatives.
20. [20]
    Any such prospect was met with contrary submissions for the counselled person and ultimately in my view, correctly so. Notwithstanding the particular interest of the counselled person in respect of the privilege attaching to her in respect of her PCC, the submissions for her did not share any particular concern in respect of any placement of onus upon the records holder to firstly determine the material to which the privilege would attach. Or at least, the position was taken that this is what must necessarily occur. As understood, this was in appropriate recognition that:

    1. The production of the documents into the control of the Court is a matter for the holder of the records, who may seek to exercise rights of objection otherwise available,^[21] and who may have an interest in issues arising under other legislation such as the Child Protection Act 1999;^[22] and
    2. The effect of s 14F, as it operates in connection with the proceeding on the indictment before the Court, extends to preventing all persons from producing PCC to a court,^[23] and otherwise disclosing, inspecting or copying PCC,^[24] other than with the leave of the court. As noted in many earlier decisions, such leave can only be given upon satisfaction of the criteria in s 14H.^[25]

Conclusions

21. [21]
    Notwithstanding some identifiable prospect of there being a later need to deal with issues arising pursuant to s 14M, it is not appropriate to consider now making any order pursuant to s 14M(4), in order to facilitate any consideration of any document to determine whether or not it is PCC.  Despite some obvious advantages in seeking to do so whilst the legal representatives for the counselled person are engaged on this application and the prospect of the Court being able to potentially assist in terms of the expediency of doing so, it would be necessarily premature to do that.  The initial step, as suggested, of the applicant first seeking to obtain any available records which do not include any PCC, will not only serve to allow for the usual exercise of the rights of the records holder and the identification of any other relevant issues arising under child protection legislation, but may also be expected to provide some useful context and framework for any further application to be made under s 14G.  Doing so may also provide further information to assist in determining whether or not it is necessary and/or desirable to bring any further application pursuant to s 14G, including by having regard to s 14H(1)(b).
22. [22]
    Further, it will be upon any such application that it may be expected that any issue to be first determined under s 14M, will be specifically identified.^[26]  Such an approach may also enable the identification of a particular counsellor(s) in respect of specific items of PCC and in respect of which, any such issues may arise.
23. [23]
    Putting aside the pragmatic considerations as to this application having been made and the legal representatives for the counselled person having been engaged and the further delay which will be involved in progression of the proceedings on the indictment before the Court, for the reasons already noted, it is simply not pragmatically possible to appropriately apply this cumbersome legislative scheme otherwise.  It is certainly not appropriate that any measures be adopted which may serve (intentionally or otherwise) to avoid or undermine the stricture of application of the s 14H criteria to the granting of leave pursuant to s 14F.^[27]
24. [24]
    It is also inappropriate to assume there will necessarily be issues to be determined pursuant to s 14M, before some particular such issue is identified in some relevant context.  It would be anticipated that any requirement to consider PCC under s 14M, would be identified upon a further application for leave to subpoena PCC brought pursuant to s 14G(1).  Once that is identified upon any such application, it would be necessary to consider what order may be necessary to facilitate the consideration of the document by the court in order to determine whether or not it is PCC.  For instance, it will be necessary to deal with the effect of s 14F in preventing even the counselled person and/or his/her legal representatives obtaining any PCC from the records holder, in connection with the proceeding on indictment, which must necessarily include any such application.  Otherwise, the counselled person through his/her legal representatives will not be in a position to present the PCC, in issue, to the Court or to engage with the Court in respect of the claim of privilege, as envisaged by s 14M.
25. [25]
    As to the application filed 24 August 2023, the conclusion must be that it is not supported by materials which allow for it to succeed. Accordingly, it is appropriate to order that the application is dismissed.