R v Dowd[2023] QDCPR 109

DISTRICT COURT OF QUEENSLAND

1. [1]
   The defendant has been charged with one count of rape, which is alleged to have occurred on 14 January 2022.  He applies for leave to issue a subpoena under section 14G of the Evidence Act for protected counselling communications between the complainant and a nominated psychologist at New Farm. 
2. [2]
   The means by which the defendant is aware that there has been what is said to be a preliminary complaint made to that psychologist is the disclosure by a police officer to the Office of the Director of Public Prosecutions that:

“As I was following up with the complainant in relation to the potential preliminary complaint, she has informed me that she also told her psychologist (who is then named in the communication) prior to reporting the matter to police.”

3. [3]
   While the details are scant and it cannot be assured that there was in fact a preliminary complaint made to the psychologist, I proceed on the basis that whatever was said does amount to a preliminary complaint. 
4. [4]
   The facts can be dealt with in relatively short compass.  The complainant attended licensed premises on the evening of 14 January 2022.  It seems that the defendant was employed as a security officer at those premises.  The two ended up exchanging numbers, and later in the evening re-met.  There was apparently some attraction between them, and they ended up at the complainant’s house. 
5. [5]
   There was then some sexual contact between them, and it is said in the complainant’s statement to the effect that she made it clear that she would not engage in penetrative sex unless he was wearing a condom.  He did not have one.  An effort was made to get one, but the nearby service station was closed.  They returned.  He suggested anal penetration to avoid the possibility of pregnancy, which the complainant says was denied.  She asserts nonetheless that he effected anal penetration.  There are said to be complaints made to an ex-boyfriend and other friends within the following hour, or hours, of the events happening and then further complaints made to others later on 14 January 2022. 
6. [6]
   The other feature about this is that there was some discussion between them prior to this occurring as to their sexual preferences.  According to the complainant, the defendant indicated that he liked to be dominant, and she responded that she was a “brat”, which she explains is:

“Kind of like a submissive person in bed but talks back a bit and challenges.” 

7. [7]
   The relevance of that is that in text messaging between her and the defendant relatively soon after the relevant incident, he refers to – and I speak broadly – being not proficient in controlling brats.  There are other text messages which contain apologies. 
8. [8]
   The complainant first went to police about this matter on the 26 February 2022.  On the material before me, it seems, and I act on the basis, that her first formal statement to police was on 24 March 2022. 
9. [9]
   The defendant was interviewed by police on 3 March 2022.  Those dates may suggest that, in fact, a statement, although not formally signed, had been provided prior to 24 March 2022.  In any event, in the interview with police – and, again, I very broadly summarise – he denied there was sexual penetration but accepted there was the discussion about there being no penetration without a condom.  He also accepted that he did not have a condom. 
10. [10]
    It is against that background that the application is made for the material from the psychologist at New Farm.  The counselled person accepts that the application should be considered on the basis that the complainant is a counselled person and that the communications will be protected counselling communications. 
11. [11]
    The written outline for the defendant provides for two limbs to the application, both asserting that each has substantial probative value.  The first is the fact that she made a preliminary complaint to her treating psychologist prior to reporting the matter to police, and, secondly, that there is substantial probative value in ascertaining whether the complainant suffered from a mental health condition or conditions which (i) impact her memory, and (ii) impact her capacity to tell the truth.  The applicant accepts that he must satisfy the substantial hurdles found in section 14H of the Evidence Act. 
12. [12]
    I can deal with the second matter briefly.  In the course of oral submissions, Counsel correctly, in my view, accepted that it was speculative that the complainant suffered from any mental health condition at all.  It was also accepted that the mere fact that someone is being treated by a psychologist does not necessarily speak of the existence of a mental health condition. 
13. [13]
    It was not pressed that the absence of a mental health condition would have substantial probative value.  Counsel was, in my view, correct not to press that.  If there was no mental health condition, it could not be of substantial probative value because the prosecution could not in the ordinary course of events had led that in any event, and it certainly would not be of substantial probative value to the defence to argue that she did not suffer from something that would have or could have affected her credibility and reliability. 
14. [14]
    While dealing with that limb, however, it is argued in response to a submission from the counselled person that any subpoena issued should not be limited to dates between 14 January 2022 and 24 March 2022.  It is argued that where it is so limited, it may – and I emphasise the word “may” – be that other material would be required to be subpoenaed.  It seems that, although there is no draft of any subpoena placed before me, it was intended simply to seek all medical records.  And it is argued that if there is to be a time limitation placed on it, it should be wider than that submitted for by the counselled person. 
15. [15]
    The difficulty with that, with respect, is that it continues to operate on an assumption or speculation that there will be other relevant material.  The proper procedure would be, if it were otherwise proper to issue a subpoena, to limit it to the strict timeframes that are suggested by the counselled person.  Were other material revealed which would be able to be shown will be of substantial probative value from that material, then the proper approach is to make application for a further subpoena.  I fully accept that this may be time consuming, and no doubt frustrating to the expedient disposition of the matter, but this is unfortunately the framework the legislature has given us to work within.
16. [16]
    I turn then to the first limb of the application, which concerns the preliminary complaint.  As I have already made clear, I operate on the basis that what was said to the psychologist will, as a matter of law, amount to preliminary complaint.  There is other abundant evidence of preliminary complaint in a broad sense, made on numerous occasions to others, which evidence is available. 
17. [17]
    This is a substantial hurdle for the applicant given the provisions of section 14H(1)(b) of the Evidence Act.  That is, there is other evidence available.  I note in the material that there seems to be some hesitation as to whether statements have been obtained from all of those to whom the complainant spoke, but there is a difference between preliminary complaint evidence being available and being produced.
18. [18]
    It seems there is much preliminary complaint evidence available.  The applicant accepts in the course of oral submissions that it cannot be shown what exactly was said in the terms of this preliminary complaint to the psychologist.  That is, in my view, a further substantial hurdle if one is to draw the distinction between preliminary complaint being made and that particular preliminary complaint being made. 
19. [19]
    The observations that were made by Judge Fantin in R v JML [2019] QDCPR 23, [46] are apt, and they have been acknowledged favourably – albeit in the context of judicial review decisions – by Justice Applegarth in TKRJ v Director of Public Prosecutions for Queensland (2021) 9 Qd R 472 at [23], and subsequently by Justice Cooper in MH v HJ [2023] QSC 176 at [15].
20. [20]
    Without quoting from her Honour, some degree of certitude is required, that is some certainty, more than a mere possibility to satisfy the test at s 14H(1)(a).  Interestingly, I note, that in 2005, or 18 years ago, in a different context, namely, the consideration of the exercise of the discretion to record a conviction, Justice Mackenzie in R v Cay, Gersch and Schell; ex parte Attorney-General Queensland [2005] QCA 467 at [74] said this:

“Section 12(2)(c) speaks of the impact a conviction ‘will’ have on the offender’s economic or social wellbeing or chances of finding employment. This involves an element of predicting the future.  Ordinarily, the word ‘will’ in that context would imply that at least it must be able to be demonstrated with a reasonable degree of confidence that those elements of an offender’s life would be impacted on by the recording of a conviction.”

21. [21]
    I consider it poignant that some now 18 years ago the same observations were made in a broadly analogous context as to the meaning of the word “will,” and I am fortified in that to adopt the observations of Judge Fantin in R v JML. 
22. [22]
    Given that there must be substantial probative value and not just probative value, the fact that the applicant is unable to point to what was said is, I think, fatal to the present application.  For all that is known, it may be that a complaint was made in identical terms to one or more of the other preliminary complainants, or it could have been radically different.  But one just does not know.  And if it is the same for one and more it will not, in my view, have substantial probative value, at least on the facts of the matter before me.
23. [23]
    I pause to note that an applicant in the position of this defendant, is in a difficult position.  They understandably are desirous of knowing what was otherwise said by a complainant in an effort to attack the credibility of the complainant.  I fully accept the submissions made on behalf of the defendant, that the credibility of the complainant will be the central issue in this matter.  Regardless of whether, as I read the material, the principal issue will be one of proof of penetration or whether, as counsel for the defendant asserts, that the issue will be one of consent does not matter.  Her credibility is the central issue.
24. [24]
    Nonetheless, a specific legislative scheme has been put in place, which is designed to restrict the access to this material unless the substantially high threshold is met.  Sometimes that will be possible.  Sometimes it will not be.  In my view, on this occasion, it is not. 
25. [25]
    I have reached those conclusions without referring also to the test under section 14H(1)(c) of the Evidence Act, requiring in essence, satisfaction of what is a public interest test.  It was briefly argued that because the defendant  is facing if convicted a significant period of imprisonment, that that is a feature that should be taken into account. 
26. [26]
    I accept that it is a feature that must be taken into account.  But there would ordinarily be required to be something more, because otherwise anybody facing a substantial period of imprisonment will satisfy the test under section 14H(1)(c), and that is not the plain reading of the legislation nor one open when considering the objects of the legislation and the clear intent of the legislature. 
27. [27]
    The application is refused.